Petition — New York City Transit Authority v. Beazer

Supreme Court brief1979

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In THE

Supreme Court of the United States

Octoser Term, 1977

No. 44 ~ 1427

ee

New York City Transit Autuority, et al.,

Petitioners,

—Y.—

Cart Beazer, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

AupHonse E. D’AmBROSE

Attorney for Petitioners

New York City

Transit Authority, et al.

370 Jay Street

Brooklyn, New York 11201

Joan OFFNER

Evcene FRe1pus

Of Counsel

———

TABLE OF CONTENTS

PAGE

NE TNE icsicictntseinnctipentnessicineninsderemmeeneenuitiiitiainiisaneaneninimatibitde 2

I increta ia adeeina dsc ncida tether alias 3

UN i accel iateaeeiadctamintidatanladiinitie 3

Constitutional and Statutory Provisions Involved ........ 4

I a Ge cccnistenteniipnanrttinmaninenninen 4

Reasons for Granting the Writ ......0........-...cccccseseseeeseeees 6

I—This case involves issues similar to issues now

pending before this Court in another case ........ 6

IIl-—-The court below has decided substantial and

important federal questions in a way which is

not in accord with applicable decisions of this

SUITED cecasessccerinashinunticdtntinseidiniinetidiliibiaaniennnmtinadnnnidates 6

Iii—Important and substantial federal questions

herein have not heretofore been specifically

determined by this Court _ siinniaaiiaiiie 10

i 18

Appenpix A

Opinion and judgment of the United States Court

of Appeals, Second Circuit, entered June 22,

TEU scivsitaciniitisetabeniseienieiddindinapsabiaeainiainnmninien la

li

PAGE

Appenpix B

Opinion and judgment of the United States Court

of Appeals, Second Cireuit, entered February 1,

IIIT Talaihivapiicsuel uadhldssinenisseustiindaeallbasionsmeemeuiestecieaadiesiabammeniien 9a

Aprenpix C

Opinion and judgment of the district court of the

Southern District of New York, entered August

is AED ‘sitciceusealpucssieiesistnediniacihinieinaalbasnaieiigpiabditilaiatndieceinpadiaits lla

Appenpix D

Opinion and judgment of the district court of the

Southern District of New York, entered May 5,

gp ALE EE ORE er Oe RO eC IO 70a

Appenbix E

Amended Permanent Injunction and Judgment of

the district court of the Southern District of

New York, entered January 24, 1977 0.000000... T5a

Appenpix F

Civil Rights Act of 1871, April 20, 1871, ¢. 22 (B.S.

SE te IEE Oh III i scsccrensiecssrdeitstaciniiceemnsiibimnessonetions 8la

Appenbix G

Civil Rights Act of 1964, Pub. L. 88-352, July 2,

1964, 78 Stat. 241: Title VIT, 42 USC § 2000e .. 82a

Apprenpix H

Civil Rights Attorney’s Fees Awards Act of 1976,

Pub. L. 94-559, October 19, 1976, 90 Stat. 2641,

ey SED ‘aiatnissiabentinedicans siehheciecebiliniiatineiaiin 92a

PAGE

Appenpix I

Fourteenth Amendment, Section 1, of the Consti-

tution of the United States .0......0.....0..ccccecseeeeeeeees 93a

APPENDIX J

New York Public Authorities Law, Article 5, Title

9, $§ 1201, 1202, 1208 ....... bbicidnasatiapiesadeiiaideltbiiiaams 94a

ApPENDIX K

Order of the United States Court of Appeals, Sec-

ond Circuit, granting petitioners’ motion for a

stay of issuance of mandate ...................cccccceeeeeee 102a

TaBLe oF CasEs

Cases:

Beazer, et al. v. New York City Transit Authority, et al.,

399 F. Supp. 1032 (SDNY 1975) ......................-ccee 2, 13, 15

Beazer, et al. v. New York City Transit Authority, et al.,

414 F. Supp. 277 (SDNY 1975) -....................s0seeeeee 2, 15, 17

Beazer, et al. v. New York City Transit Authority, et al.,

I a, car aac errceeecacmnneeenonane 2,13

Bennett v. California, 406 F.2d 36 (9th Cir. 1969) cert.

I i ceeisctemtiiicacenettaacimene 7

Bennett v. Gravelle, 323 F. Supp. 203 (D.C. Md. 1971),

aff’d, 457 F.2d 1011 (4th Cir. 1971), cert. dismissed

I a sebaslbiopeibannsine 8

Blake v. City of Los Angeles, 435 F. Supp. 55 (D.C.D.

EPR ee sae a 16

Board of Regents v. Roth, 408 U.S. 564 (1972) 0.000...... 13

iv

PAGE

Causey v. Ford Motor Co., 516 F.2d 416 (Sth Cir. 1975) 16

Chance v. Board of Examiners, 458 F.2d 1167 (1972)

reversed on rehearing on other grounds, 534 F.2d 993

(1976) cert. den. 431 U.S. 965 (1977) ccc ccccccceeeeee 16

City of Kenosha v. Bruno, 412 U.S. 507 (1973) ....6,8, 10, 12

Dandridge v. Williams, 397 U.S. 471 (1970) 0. 15

Edelman y. Jordan, 415 U.S. 651 (1973) 0. 1!

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) ee. 12

Ford Motor Co. v. Dept. of Treasury of Ind., 323 U.S.

| | pe x

Frontiero v. Richardson, 411 U.S. 677 (1973) .000000....... 13

Graham vy. Richardson, 403 U.S. 365 (1971) 00000000... 13

Great Northern Life Ins. Co. v. Read, 322 U.S. 47 (1944) 8

Guardian Association of New York v. Civil Service

Commission, 431 F. Supp. 526 (SDNY 1977) ............... 7

International Society for Krishna Consciousness, Inc.

v. Port Authority, 425 F. Supp. 681 (SDNY 1977)... 7

Jagnandan vy. Giles, 538 F.2d 1166 (5th Cir. 1976), cert.

den. 433 US. SOD (GUT) nnnsinseesiiees 7

Kennecott Copper Corp. v. State Tax Commission, 327

U.S. 573 (1946) ...... peieasipihitigaataiaieiaasiasiaaiintaaass 8

Korematsu v. United States, 323 U.S. 214 (1944) ........ 13

K ostka v. Hogg, 560 F.2d 37 (1st Cir. 1977) 000. 7

Lerner v. Casey, 2 N.Y.2d 355 (1959), aff'd 357 U.S. 468

(1958) ceccccccsseceee

PAGE

Lindsley vy. National Carbonic Gas Co., 220 U.S. 61

EET a 14

Lloyd v. Regional Transportation Authority, 548 F.2d

SU, IED ccsnicnicmnentnensieieemmans ensiesinin 7

Monell vy. Dept. of Soc. Serv. of the City of New York,

532 F.2d 259 (1976), cert. granted 429 U.S. 1071

Ee ; ciintabiniapndiienieatimeed 6, 7, 10

Meouroe v. Pape, 365 U.S. 167 (1961). 6, 8,12

Muzquiz v. City of San Antonio, 528 F.2d 499 (5th Cir.

1976) Appeal to U.S. Supreme Court pending ............ 11

Owen vy. City of Independence, Missouri, 560 F 2d 925

(8th Cir. 1977) Appeal to U.S. Supreme Court pend-

EEE 11

Patton vy. Conrad Area School District, 388 F. Supp.

re 11

Sams v. New York State Board of Parole, et al., 352 F.

Supp. 296 (SDNY 1972), Appeal dismissed 2d Cir.

EERE Se eee 7

Scheuer v. Rhodes, 416 U.S. 232 (1974) 000... 9

Scott v. City of Anniston, 430 F. Supp. 508 (N.D. Ala.

EL ESXS SLT 17

Silver v. Dickson, 403 F.2d 642 (4th Cir. 1968) cert.

i cree 9

Skehan v. Board of Trustees of Bloomsburg State Col-

lege, 436 F. Supp. 657 (M.D. Pa. 1977) 000000... 13

Sugarman v. Dougall, 413 U.S. 634 (1973) 20. 13

United States v. lronworkers, 443 F.2d 544 (9th Cir.

1971) cert. den. 404 U.S. 984 (1971) 0. 16

PAGE

Westberry v. Fisher, 309 F. Supp. 12 (D.C. Me. 1970) 8

Wood v. Strickland, 420 U.S. 308 (1975) ........--.----00e-ee-e- 9,11

Worley v. California Department of Correction, 432

oF OU 9

Statutes Crrep

Civil Rights Act of 1871, R.S. 1979, 42 USC § 1983 .4, 6, 12

Civil Rights Act of 1964, Title VI1, 42 USC § 2000e,

GU, cecttctetccesteneceneetamnetneninniieiieenantennne 4

Civil Rights Attorney’s Fees Awards Act of 1976, Pub.

Sf LS SSR ree eee 4,12

Constitution of the United States

Fourteenth Amendment, Section 1.00.00... 4

Public Authorities Law of the State of New York

I 4,7,8

Section 1254(1) of the Judicial Code, 28 USC §1254(1) 4

In THE

Supreme Court of the United States

Ocroser Term, 1977

No. ——

>

New York Crry Transit Autnonrity, et al.,

Petitioners,"

—VJ.—

Cart Beazer, et al.,

Respondeunts.**

<>

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

The petitioners respectfully pray that a writ of certiorari

issue to review the judgments of the United States Court

of Appeals, Second Cireuit, dated and entered in this case

June 22, 1977 and February 1, 1978.

* Petitioners, who were defendants in the District Court, appel-

lants-cross-appellees in the appeal to the Circuit Court are the

New York City Transit Authority, Manhattan and Bronx Surface

Transit Operating Authority, William J. Ronan, individually and

in his capacity as a member and as chairman and chief executive

officer of the New York City Transit Authority and also as a

director and as chairman and chief executive officer of the Man-

hattan and Bronx Surface ey ~ ogy Bag , and his

successors in office, William L. Butcher wrence Bailey,

Harold L. Fisher, William A. Shea, Eben W. Pyne, Leonard

Braun, “Justine” N. Feldman, Donald H. Elliott, Frederic B.

Powers and Mortimer Gleeson, individually and in their capacities

as members of the New York City Transit Authority and di-

rectors of the Manhattan and Bronx Surface Transit Operating

Authority, and their successors in office; Wilbur B. McLaren,

individually and in his capacity as executive officer for labor

Opinions Below

The opinion of the United States Court of Appeals, See-

ond Cireuit, of June 22, 1977 is reported at 558 F.2d 97

(1977), and reprinted as Appendix A annexed hereto (infra,

p. la). The opinion of the United States Court of Appeals,

Second Cireuit, entered on February 1, 1978, denying peti-

tioners’ petition for rehearing is unreported and appears

as Appendix B (infra, p. 9a). The opinion of the United

States District Court for the Southern District of New

York dated August 6, 1975, is reported at 399 F. Supp.

1032 and reprinted as Appendix C (infra, p. lla). The

Supplemental Opinion of the United States District Court

for the Southern District of New York dated May 5, 1975, is

reported at 414 F. Supp. 277 and reprinted as Appendix D

infra, p. 70a).

relations and personnel of the New York City Transit Authority,

and his successors in office; Louis Lanzetta, individually and

in his capacity as medical director of the New York City Transit

Authority, and his successors in office. The Civil Service Com-

mission of New York; Personnel Department of the City of New

York; Harry I. Bronstein, individually and in his capacity as

a member and as Chairman of the Civil Service Commission of

the City of New York, and director of the Personnel Department

of the City of New York, and his successors in office; David

Stadtmauer and James W. Smith, individually and in their capac-

ities as members of the Civil Service Commission of New York,

and their successors in office, were dismissed from the action after

the District Court judgment.

** Respondents, who were plaintiffs in the District Court, respon-

dents-cross-appellants in the appeal to the Circuit Court are Carl

Beazer; Jose R. Reyes; Francisco Diaz; Malcolm K. Frasier,

individually and on behalf of all others similarly situated.

Nathaniel Wright was added as a named plaintiff-appellee-cross-

appellant member of the class after the District Court trial had

begun.

Jurisdiction

The judgment of the United States Court of Appeals,

Second Circuit was entered on June 22, 1977, Appendix A

(infra, p. la). A motion and petition for a rehearing en

bane was denied by the United States Court of Appeals,

Second Circuit on February 1, 1978 Appendix B (infra,

p. 9a). An order granting petitioners’ motion for stay of

mandate was entered on March 10, 1978. This petition for

certiorari was filed within 90 days of the order denying

rehearing and within 30 days of the order granting stay

of mandate Appendix K (p. 102a, mfra). The jurisdic-

tion of this Court rests on 28 USC § 1254(1).

Questions Presented

1. Are a public transit authority and/or its officials “per-

sons” subject to suit under the Civil Rights Act of

1871 (42 USC § 1983)?

2. If petitioners are subject to suit under the Civil Rights

Act of 1871, are they liable for awards of back pay and

attorneys’ fees?

3. Is the petitioners’ denial of employment to former heroin

addicts participating in methadone maintenance pro-

grams, an unconstitutional denial of due process and

equal protection under the Fourteenth Amendment?

4. Is the petitioners’ denial of employment to former

heroin addicts participating in methadone maintenance

programs, an unlawful racial discrimination under Title

VII of the Civil Rights Act of 1964, 42 USC §2000e

et seq.?

Constitutional and Statutory Provisions Involved

The Fourteenth Amendment, Section 1 of the Constitu-

tion of the United States; Title VII of the Civil Rights Act

of 1964, 42 USC § 2000e et seq.; the Civil Rights Act of

1871, 42 U.S.C. § 1983; New York State Public Authorities

Law §§ 1200, et seq.; Civil Rights Attorneys’ Fees Awards

Act of 1976, 28 U.S.C. § 1988; 28 U.S.C. § 1254(1), are

set out in Appendices F through J.

Statement

This class action was commenced under 28 USC § 1331,

42 USC § 1983 and 42 USC § 2000e.

The gravamen of the suit was the alleged unconstitu-

tionality of the petitioners’ policy of excluding from em-

ployment former heroin addicts who are participants in or

have completed a methadone maintenance program. The

class is composed of all such persons who have been, or

would in the future be, subject to dismissal or rejection

for employment by the petitioners.

The district court found, under 42 USC $1983, that the

petitioners’ exclusion of present and past methadone main-

tained persons from employment in any position in the

New York City Transit Authority was a violation of the

due process and equal protection clauses of the Fourteenth

Amendment. The court, inter alia, ordered the petitioners

to give individual consideration to each methadone main-

tained employee or applicant for employment, and awarded

back pay. The district court dismissed the petition as to

defendant New York City Civil Service Commission, New

5

York City Personnel Department, and their named of-

ficials.

On May 5, 1976, the district court issued a supplemental

opinion finding the petitioners guilty of discrimination

under Title VII of the Civil Rights Act of 1964, 42 USC

§ 2000e, e* seq. as amended, for the sole purpose of estab-

lishing jurisdiction to award attorneys’ fees. On January

24, 1977, following the enactment of the Civil Rights At-

torneys’ Fees Act of 1976, 42 USC § 1988, the district court

issued an Amended Permanent Injunction and Judgment

(Appendix FE, p. 75a, infra) basing its award of attorneys’

fees on that Act. The attorneys’ fees awarded by the district

court were in the sum of $375,000.00 for legal services per-

formed up to October 8, 1976.

The United States Court of Appeals, Second Circuit,

affirmed the opinion of the court below, except it reversed

the dismissal as to Beazer, Reyes and Wright, remanded

the case to the district court for determination of positions

to which Beazer, Reyes and Wright should be reinstated

and the amount of back pay due them, and reduced the

attorneys’ fee award by the sum of $50,710.00, the amount

given by the district court as a “premium” for legal work

performed.

REASONS FOR GRANTING WRIT

I.

This case involves issues similar to issues now pending

before this Court in another case.

In Monell v. Dept. of Soc. Serv. of the City of New York,

O82 F.2d 259 (1976), cert. granted 429 U.S. 1071 (1977),

this Court granted certiorari on the question of whether

local government officials and/or local independent school

boards are “persons” subject to suit under 42 USC § 1983,

where relief in the nature of back pay was sought against

them in their official capacities.

The instant case thus shares with Monell the issues of

whether a public agency or its officials are “persons” sub-

ject to suit for monetary relief under 42 USC » 1983.

The court below has decided substantial and im-

portant federal questions in a way which is not in accord

with applicable decisions of this Court.

A. The decision below asserts jurisdiction over an inde pen-

dent public transit authority and its officials under 42

USC § 1983, and therefore conflicts with this Court’s de-

cisions in Monroe vy, Pape, 365 U.S. 167 and City of

Kenosha v. Bruno, 412 U.S, 507.

In Monroe v. Pape, 365 U.S. 167 (1961), and City of

Kenosha vy. Bruno, 412 U.S. 507 (1973), this Court ruled

that a municipality is not a “person” subject to suit under

42 USC § 1983 (the Civil Rights Act of 1871) for either

monetary or equitable relief. The courts of the various

——

7

circuits have applied this principle repeatedly to the states

and other governmental bodies as well as to municipalities.

Kostka v. Hogg, 560 F.2d 37 (1st Cir. 1977) ; Bennett v. Cali-

fornia, 406 F.2d 36 (9th Cir. 1969) ; Guardian Association

of New York vy. Civil Service Commission, 431 F. Supp.

526 (SDNY 1977).

The petitioner Transit Authority was created by the

legislature as a public benefit corporation to perform the

governmental function of operating the transit facilities

owned by the City of New York. These functions pre-

viously were vested in the Board of Transportation of the

City of New York, a former city agency. The Transit

Authority is composed of members appointed by the Gov-

ernor by and with the advice and consent of the Senate.

(Publie Authorities Law, §§ 1201.1, 1202.1, 1202.2; Lerner

v. Casey, 2 NY 2d 355 (1957), aff'd 357 US 468 (1958)). The

Authority has been held not to be a “person” subject to

suit under $1983. (Sams v. New York State Board of

Parole, et al., 352 F. Supp. 296 (SDNY 1972), appeal dis-

missed 2nd Cir. 12/11/73).

In the course of its opinion in Monell, supra (532 F.2d

at 263), the Second Circuit observed that the New York

City Transit Authority is not a person within the meaning

of § 1983. Yet in the present case, the same Second Circuit

asserted jurisdiction over the Transit Authority under

that same statute.

Other agencies similar to the Authority also have been

found not to be persons under § 1983, see Jagnandan vy.

Giles, 538 F.2d 1166 (5th Cir. 1976), cert. den. 432 U.S. 910

(1977); Lloyd v. Regional Transportation Authority, 548

F.2d 1277 (7th Cir. 1977) ; International Society for Krishna

Consciousness, Inc. v. N.Y. Port Authority, 425 F. Supp. 681

(SDNY 1977).

8

The doctrine that municipalities are immune from suit

for both equitable and monetary relief under 42 USC

§ 1983 (Monroe v. Pape, supra; City of Kenosha vy. Bruno,

supra), should be equally applicable to public officials.

To rule otherwise would effectively remove the immunity

provided municipalities by Congress under 42 USC § 1983.

Under New York law, the individually named petitioners

herein are duly appointed public officials of an agency of

the State of New York (Public Authorities Law, § 1201.2)

and the entire thrust of this proceeding is obviously

directed to that agency. When such public officials are sued

in their official capacities, with the result that liability

in equity or damages will be imposed on the State, a sub-

division of the State, or a municipality, the suit is, in

actuality “one against the State or municipality even

though the State or municipality is not named as a defen-

dant” (Westberry vy. Fisher, 309 F. Supp. 12, 18 [D.C. Me.

1970]). Cf. Kennecott Copper Corp. v. State Tax Commis-

sion, 327 U.S. 573 (1946); Ford Motor Co. vy. Dept. of

Treasury of Ind., 323 U.S. 459 (1945); Great Northern

Life Ins. Co. v. Read, 322 U.S. 47 (1944).

At most, public officials, in their official capacity, have

been held subject only to injunctive or declaratory relief

under § 1983. Thus, in Bennett y. Gravelle, 323 F. Supp.

203 (D.C. Md. 1971), aff’d 451 F.2d 1011 (1971), cert. dis-

missed 407 U.S. 917 (1972), in dismissing a complaint for

alleged discrimination brought against the Chairman and

Members of the Washington Sanitary Commission, the

court said:

In their official capacities, the Commissioners are ex-

tensions of the municipal agency and are, therefore,

9

not ‘persons’ within the meaning of § 1983. Accord-

ingly, damages may not be assessed against the de-

fendants under this section for acting in their official

capacities. 323 F. Supp. at 211.

See also Worley v. California Department of Correction,

432 F.2d 769 (9th Cir. 1970) and Silver vy. Dickson, 403 F.

2d 642 (4th Cir. 1968), cert. den. 394 U.S. 990 (1969).

This Court recently clarified the scope of immunity of

government officials from liability for damages under

§ 1983. In Wood v. Strickland, 420 U.S. 308 (1975), an

action for damages under § 1983 against school board

officials, the Court declared (at p. 318) that “common-law

tradition recognized in our prior decisions, and strong

public policy reasons” required the extension of a qualified

good faith immunity to the school officials. The Court

stated further (at p. 322):

A compensatory award will be appropriate only if the

school board member has acted with such an impermis-

sible motivation or with such disregard of the stu-

dent’s clearly established constitutional rights that

his action cannot reasonably be characterized as being

in good faith.

See also Scheuer v. Rhodes, 416 U.S. 232 (1974), in which

the Court took note of:

. . » (1) the injustice, particularly in the absence of

bad faith, of subjecting to liability an officer who is

required, by the legal obligation of his position, to

exercise discretion; (2) the danger that the threat

of such liability would deter his willingness to execute

his office with the decisiveness and the judgment re-

quired by the public good. 416 U.S. at 239.

10

In the case at bar, no finding of bad faith was made

by the courts below, and consequently, no award of

monetary damages could properly be made, As wil] be

demonstrated infra, awards of back pay and attorneys’ fees

must be regarded as monetary damages,

Ii.

Important and substantial federal questions herein

have not heretofore been specifically determined by

this Court.

A. Back pay and attorneys’ fees are monetary costs which are

indistinguishable from damages, and therefore should not

be assessed against public officials under 42 USC § 1983.

The courts below awarded back pay to members of the

affected class, and attorneys’ fees in the sum of $324,290

for legal services performed up to October 8, 1976.

In Monell v. Department of Social Services of the City

of New York, 532 F.2d 259 (2d Cir. 1976), cert. granted

429 U.S. 1071, the Second Circuit looked to the legislative

history of 42 USC § 1983, recited by Mr. Justice Douglas

in City of Kenosha y. Bruno, supra, 412 U.S. at 516, 517-

520 and found that:

. if we try to adjust the grievances of the present

plaintiffs by allowing the remedy of back pay under

§ 1983 ... we would be broadening the indirect remedy

of damages generally against cities, which we are

reluctant to do for reasons of precedent and con-

comitant policy.

e eo e

11

The claim for back pay is not merely an adjunct of

equitable relief. It stands singly as a claim for damages

which cannot be distinguished from many other claims

for violations of civil rights in actions which do not

involve employment discrimination. 532 F.2d at 267.

Similar findings were made in Muzquiz v. City of San An-

tonio, 528 F.2d 499 (5th Cir. 1976); Patton v. Conrad Area

School District, 388 F. Supp. 410 (D. Delaware, 1975).

As this Court observed in Wood v. Strickland, 420 U.S.

308, 319-320 (1974):

The imposition of monetary costs for mistakes which

were not unreasonable in light of all the circumstances

would undoubtedly deter even the most conscientious

school decision-maker from exercising his judgment

independently, forcefully and in a manner best serv-

ing the long term interests of the school and students.

(emphasis added)

Both attorneys fees and back pay awarded herein are

“monetary costs,” the liability for which would effectively

impede the administrative decision-making processes of the

petitioners. The financial burden which these monetary

costs would impose on the petitioners and on the City

and State treasuries which subsidize the petitioners, would

be the same whether the award were labeled “damages” or

“equitable.”

This Court’s concern with reality rather than with labels

was demonstrated in Edelman vy. Jordan, 415 U.S. 651

(1973), where it was found, as cited by the Court of

Appeals in Owen v. City of Independence, Missouri, 560 F.

2d 925, 932 (8th Cir. 1977),

12

- +. that a request for retroactive welfare benefits,

even if entitled ‘equitable restitution’ and made part of

an equitable decree in a suit against a state official,

is in reality a suit against the state barred by the

eleventh amendment if the retroactive benefits are to

be paid from the state treasury, .

While no Eleventh Amendment claim is made in the case

at bar, a similar immunity is provided to public agencies

under 42 USC § 1983. The Congress, in its enactment of

the Civil Rights Act of 1871 (subsequently 42 USC § 1983),

clearly intended to prevent the depletion of public treasuries

through the imposition of damage liability upon munic-

ipalities or their Officials. (See discussion Monroe y.

Pape, supra, pp. 187-192 and City of Kenosha y. Bruno,

supra, pp. 516-520.) If, by labeling attorneys fees and

back pay as “equitable” or “costs,” they thereby are not

deemed as great a threat to public treasuries as are damage

awards, a semantic nicety will have overridden the clear

intent of Congress.

The Civil Rights Attorneys’ Fees Awards Act of 1976,

42 USC § 1988, should not be construed to overcome the

immunity provided to public agencies and their officials

under § 1983. While Congress, by express language, could

have subjected public agencies to awards of attorneys

fees in actions brought under § 1983, the Attorneys’ Fees

Awards Act contains no such express language. In the

absence of explicit Statutory language subjecting public

agencies and officials to liability for attorneys fees, the

13

Skehan v. Board of Trustees of Bloomsburg State College,

436 F. Supp. 657 (M.D. Pa. 1977).

B. The court below improperly applied the strict scrutiny

standard in finding a denial of due process and equal

protection, since this case involves neither a suspect classi-

fication nor a fundamental right.

The courts below found that the petitioners’ denial of

employment to former heroin addicts participating in

methadone maintenance programs was an unconstitutional

denial of due process and equal protection under the Four-

teenth Amendment. In reaching this conclusion, both the

district court and the Cireuit Court expressly relied on

eases (principally, Sugarman vy. Dougall, 413 U.S. 634

{1973]), which had applied the strict scrutiny standard

reserved for cases involving a suspect classification or a

fundamental interest. (See Cireuit Court decision, 558 F.

2d at p. 99, and district court decision 399 F. Supp. at

p. 1057.)

The group involved in the instant case, drug users, is

not within the suspect categories which have been enumer-

ated by this Court (e.g., race [Korematsu v. United States,

323 U.S. 213 (1944)]; alienage [Graham vy. Richardson,

403 U.S. 365 (1971)]; and to a limited extent, sex

[Frontiero v. Richardson, 411 U.S. 677 (1973) }.

Similarly, the employment sought in this case is not

a “fundamental right,” deprivation of which could be jus-

tified only by a compelling state interest. This Court has

found that there is no “right” to a job or to appointment

to a job. See Board of Regents v. Roth, 408 U.S. 564

(1972).

14

If the decision below is allowed to stand, a new category

subject to the Court’s strict scrutiny, will have been

created.

Since the case at bar involves neither a suspect classifica.

tion nor a fundamental right, the traditional or “restrained”

standard of review should have been applied under the

guidelines of Lindsley vy. National Carbonic Gas Co., 220

U.S. 61 (1911), as follows:

1. The equal protection clause of the Fourteenth

Amendment does not take from the State the power

to classify in the adoption of police laws, but admits

of the exercise of a wide scope of discretion in that

regard, and avoids what is done only when it is with-

out any reasonable basis and therefore is purely

arbitrary. 2. A classification having some reasonable

basis does not offend against that clause merely be-

cause it is not made with mathematical nicety or

because in practice it results in some mequality. 3.

When the classification in such a law is called in

question, if any state of facts reasonably can be con-

ceived that would sustain it, the existence of that state

of facts at the time the law was enacted must be

assumed. 4. One who assails the classification in such

a law must carry the burden of showing that it does

not rest upon any reasonable basis, but is essentially

arbitrary. 220 U.S. at pp. 78-79. (emphasis added.)

The petitioners’ policy of denying employment to drug

users was based on its concern for the safety of the riding

public. Petitioners sought to employ persons able to fune-

tion well in the routine and challenge of daily work,

whether in operational or administrative positions. The

15

record below includes the testimony of medical experts

challenging the efficacy of methadone maintenance pro-

grams, and in fact, the district court decision acknowledged

that “there are differences of opinion as to the merits of

methadone maintenance as a treatment for heroin addic-

tion.” Beazer, supra, 399 F. Supp. at p. 1058.

Clearly, then, this case does not involve the “invidious

discrimination” which is necessary to a finding of uncon-

stitutionality under the traditional standard of scrutiny.

(See Dandridge v. Williams, 397 U.S. 471, 483 [1970].)

Cc. The district court improperly applied the disparate impact

test in finding that petitioners’ employment policy violated

Title VII of the Civil Rights Act of 1964 (42 USC 2000e).

The Court of Appeals did not reach the question of Title

VII jurisdiction and liability as applied to petitioners by

the district court. Nevertheless, the district court opinion

established an undesirable precedent which merits review

by this Court.

The district court ruled that the petitioners’ policy of

excluding methadone maintained persons from employ-

ment had a disparate impact on Blacks and Hispanics

and therefore constituted unlawful employment discrimina-

tion in violation of Title VII. The ruling was made for

the express purpose of establishing jurisdiction for an

award of attorneys fees. Beazer, supra, 414 F. Supp. at

278. The court found disparate impact solely on the basis

of statistics purporting to show (1) that of the employees

referred to petitioners’ medical consultant “for suspected

violation of its drug policy” (Beazer, supra, 414 F. Supp.

at p. 278) 81% were Black and Hispanic and 19% were

White; and (2) that between 62% and 65% of methadone

16

maintained persons in New York City are Black and

Hispanic.

The first set of statisties is irrelevant in the context of

this case, since it is not limited to methadone maintained

persons nor does it indicate how many, if any, of the

persons referred to the medical consultant, were discharged

from employment.

The second set of statistics was not presented at the trial

as hard data but merely as imprecise estimates by several

of the respondents’ witnesses. Moreover, the court dis-

regarded the minimal nature of the impact on the relevant

group, a threshold requirement for a finding of Title VII

discrimination. Chance v. Board of Examiners, 458 F.2d

1167, 1176 (1972) reversed on rehearing on other grounds,

534 F.2d 993 (1976) cert. den. 431 U.S. 965 (1977).

The court also disregarded the fact that 46% of peti-

tioners’ work foree is Black and Hispanic. As stated in

United States y. Ironworkers, 443 F.2d 544, 551, cert.

denied 404 U.S. 984 (1971) the use of statistics must be

“eonditioned by the existence of proper supportive facts

and the absence of variables which would undermine the

reasonableness of the inference of discrimination.” See

also Causey v. Ford Motor Co., 516 F.2d 416, 420. In the

case at bar, there are no such supportive facts, the

statistics themselves are of dubious validity, and the find-

ing of discrimination is entirely unwarranted.

Moreover, recent decisions have cast doubt on the

validity of the disparate impact standard in its applica-

tion to a public agency. As cited by Blake vy, City of Los

Angeles, 435 F. Supp. 55 (D.C.D. Cal. 19/7), the court in

17

Scott v. City of Anniston, 430 F. Supp. 508 (N.D. Ala.

1977) found,

... the intent standard, i.e. that there must be proof

of discriminatory racial purpose as in Washington v.

Davis, should be applied in civil rights litigation

brought under Title VII. ... The Supreme Court held

in Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S. Ct. 2666

(427 U.S. at 453, 96 S. Ct. at 2670), that the authority

for the 1972 amendment extending Title VII to State

and local governments was the Fourieenth Amend-

ment... . Therefore, it is simple logic that a statute

can be no broader than its Constitutional base... .

It follows that in Title VII cases against a State or

local government the statute is to be construed in

accordance with the Constitutional test adopted by the

Court in Washington, supra: i.e. there must be proof

of discriminatory purpose. (Scott v. City of Anniston,

430 F. Supp. at 514-15; cited in Blake v. City of Los

Angeles, 435 F. Supp. at 63-64.)

In the instant case the court below acknowledged that no

discriminatory purpose was present. Beazer, supra, 414

F. Supp. 277, 279. Consequently, no support exists in this

ease for liability under Title VII.

18

III.

CONCLUSION

For the foregoing reasons, this Petition for a Writ

of Certiorari should be granted.

Respectfully submitted,

AtpHonse E. D’Amsrosé

Attorney for Petitioners

New York City

Transit Authority, et al.

370 Jay Street

Brooklyn, New York 11201

Joan Orrner

EvcGene Freipvs

Of Counsel

Dated: April, 1978

Appendices

APPENDIX A

Opinion and Judgment of the United States Court of

Appeals, Second Circuit, Entered June 22, 1977

UNITED STATES COURT OF APPEALS

Seconp Circuit

| —>—

| Cart A. Beazer et al.,

Plaintiffs-A ppellees-Cross-A ppellants,

—V.—

New York City Transit Autuoriry et al.,

Defendants-A ppellants-Cross-Appellees.

—<—f -

Nos. 1043, 1309, Dockets 76-7295, 77-7092

Argued May 5, 1977

Decided June 22, 1977

Alphonse E. D’Ambrose, Brooklyn, N. Y. (E. W. Sum-

mers, G. T. Dunn, Brooklyn, N. Y., of counsel), for defen-

dants-appellants-cross-appellees.

Elizabeth B. DuBois, Erie D. Balber, Mark C. Morril,

New York City (Michael Meltsner, New York City, of

counsel), for plaintiffs-appellees-cross-appellants.

Robert B. Fiske, Jr., U. S. Atty., S. D. N. Y., New York

City, Barbara Allen Babcock, Asst. Atty. Gen., Ronald R.

Glancz, Robert S. Greenspan, Walter W. Barnett, Attys.,

Dept. of Justice, Washington, D. C., Sidney Edelman, Asst.

2a

Gen. Counsel, Rockville, Md., Robert B. Lanman, Senior

Atty., Dept. of Health, Education and Welfare, Washing-

ton, D. C., on brief for United States as amicus curiae urg-

ing affirmance of the appeal.

Before Mansriecp and Oakes, Circuit Judges, and

Brieant, District Judge.*

Oakes, Circuit Judge.

L.

In a comprehensive and carefully limited opinion, the

United States District Court for the Southern District of

New York, Thomas P. Griesa, Judge, held that the New

York City Transit Authority’s blanket exclusion from em-

ployment of all persons participating in or having success-

fully concluded methadone maintenance programs—the

plaintiff class in this action brought under 42 U.S.C. § 1983

—violated the equal protection and due process clauses of

the Fourteenth Amendment. The court enjoined the Tran-

sit Authority (TA) from further enforcing its poliey. 399

F.Supp. 1032 (S.D.N.Y. 1975). On appeal the TA does not

challenge any of Judge Griesa’s findings as factually erro-

neous, nor could it in view of the one-sided record before

us. This record, developed over fifteen days of trial, over-

whelmingly supports the trial court’s findings that, after a

brief initial period of adjustment, many former heroin

addicts on methadone maintenance are employable and that

identification of those who are employable is readily ac-

complished through regular personnel procedures.

The district court’s conclusion of law was that the TA’s

methadone rule has “no rational relation to the demands

* Of the Southern District of New York, sitting by designation.

3a

of the jobs to be performed.” 399 F.Supp. at 1057. This

conclusion rests on the solid foundation of Sugarman v.

Dougall, 413 U.S. 634, 93 S.Ct. 2842, 37 L.Bd.2d 853 (1973)

(policy against employment of aliens unconstitutionally

overinclusive), and our own Crawford v. Cushman, 531

F.2d 1114, 1123 (2d Cir. 1976) ( policy requiring discharge

of pregnant Marine unconstitutionally under- and overin-

clusive), as the United States as amicus curiae points out.

Accord, Cook vy. Arentzen No. 76-1359 (4th Cir. May 6,

1977). The decree is drawn strictly on the basis of the evi-

dence and does not prevent the TA from making regula-

tions to ensure that past or present methadone users are

proven to be employable and to prevent their employment

in safety-sensitive jobs. Accordingly, we affirm the district

court’s holding of a constitutional violation and its conse-

quent injunction against further enforcement of the TA

policy.

It.

In a supplemental opinion Judge Griesa also held that

appellees were entitled to relief under Title VII of the Civil

Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., because the

TA methadone policy had a racially discriminatory effect.

414 F.Supp. 277 (S.D.N.Y. 1976). Appellees concededly

pressed their Title VII claim for the sole purpose of obtain-

ing attorneys’ fees under 42 U.S.C. § 2000e-5(k), see 414

F.Supp. at 278, and the court did award such fees. We

need not reach the Title VII issues in this case, however,

because before the decree became final Congress enacted

the Civil Rights Attorney’s Fees Awards Act of 1976, 42

U.S.C. § 1988, which permits the court in its discretion to

allow a prevailing party in a § 1983 action, as here, “a rea-

sonable attorney’s fee as part of the costs.” After passage

4a

of this statute appellees moved for a declaration that it pro-

vided an alternative basis for the award of attorneys’ fees

in this case, and the district court so ruled. The court

awarded to appellees a total fee of $375,000, of which

$310,000 was compensation for hours worked, $14,290 was

for costs incurred, and the balance was a “premium.”

Judge Griesa was correct in holding that the 1976 Act au-

thorized a fee award here, even though it was enacted after

most of the services below were rendered. A change in

the law is to be given effect in a pending case unless there

is some indication to the contrary in the statute or its legis-

lative history or unless manifest injustice would result.

Bradley v. School Board, 416 U.S. 696, 711, 714-16, 94 S.Ct.

2006, 40 L.Ed.2d 476 (1974): Brown v. General Services

Administration, 507 F.2d 1300, 1305-06 (2d Cir. 1974), aff'd

on other grounds, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d

402 (1976). Here the only reference in the legislative his-

tory explicitly supports the Act’s application to pending

cases, H.R.Rep. No. 94-1558, 94th Cong., 2d Sess. 4 n. 6

(1976), and no manifest injustice from applying the statute

to this pending case is alleged. Nor is any injustice alleged

from the award of fees itself. Since a party who succeeds

in enforcing his civil rights should ordinarily recover his

attorneys’ fees, unless special cireumstances—not alleged

here—render such recovery unjust, see S.Rep. No. 94-1011,

94th Cong., 2d Sess. 4 (1976) reprinted in [1976] U.S. Code

Cong. & Admin. News, pp. 5908, 5912, quoting Newman vy.

Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct.

964, 19 L.Ed.2d 1263 (1968); see also Northcross vy. Board

of Education, 412 U.S. 427, 428, 93 S.Ct. 2201, 37 L.Ed.2d

48 (1973) (per curiam), the awarding of a fee under the

1976 Act was proper.

5a

In addition to arguing against the awarding of any fee,

however, appellants contend that the amount awarded was

excessive. With regard to the sums awarded for hours

worked and costs incurred, we uphold the district court.

The requirements of documentation and an evidentiary

hearing as to time charges, set forth in City of Detroit v.

Grinnell Corp., 495 F.2d 448, 464-74 (2d Cir. 1974), have

been fully met here, and our decision in Torres vy. Sachs,

038 F.2d 10 (2d Cir. 1976), permitted the district court to

use “the same [fee award] standards as in other complex

federal litigation,” id. at 12, without regard to the nonprofit

or “public interest” nature of the legal work done for ap-

pellees, see id. at 13. As to costs, they are frequently

awarded by courts to successful parties, and no challenge

is made to appellees’ itemization here.

We must modify the district court’s award, however, to

the extent of eliminating the $50,710 awarded as a “pre-

mium.” We take the view that this extra award amounted

to an abuse of discretion in the particular circuiastances

of this case. Though complex factual issues were involved,

the proof of which required diligent and rather prodigious

effort, the legal issues were relatively simple and few.

There was no dispv‘e over the governing constitutional

doctrines, although their applicability to the facts was a

matter requiring considerable persuasive skill. Moreover,

the benefits that the suit will bring to the plaintiff class

are not altogether concrete. No monetary fund was recov-

ered for the class (although back pay will be recovered by

certain individual claimants); appellants are simply en-

joined from continuing past policy. Only members of the

class who (1) seek employment with the TA and (2) are

not denied employment on legitimate grounds unconnected

with methadone use will benefit from this litigation. These

6a

two factors, complexity or risk of loss on the legal issues

and benefit to the clients, are important considerations in

any award of attorneys’ fees above an hourly rate. See

City of Detroit v. Grinnell Corp., supra, 495 F.2d at 470;

Alpine Pharmacy, Inc. v. Chas. Pfizer & Ca,, 481 F.2d 1045,

1050 (2d Cir.), cert. denied, 414 U.S. 1092, 94 S.Ct. 722, 38

L.Ed.2d 549 (1973); Blank y. Talley Industries, Inc., 390

F.Supp. 1, 6 (S.D.N.Y. 1975); Pealo v. Farmers Home Ad.

ministration, 412 F.Supp. 561, 567 (D.D.C. 1976). Since

neither factor argues in favor of an extra award here, we

must heed our own admonition to serutinize attorneys’

fee applications with an “eye to moderation,” seeking to

avoid either the reality or the appearance of awarding

“ ‘windfall fees.’” City of Detroit v. Grinnell Corp., supra,

495 F.2d at 469, 470. We reduce the award by $50,710 and

otherwise affirm it.

ITI.

Cross-appellants Beazer, Reyes and Wright, three of the

named plaintiffs in this class action, were denied individual

relief—reinstatement and back pay—by the district court

solely on the basis that, by being heroin users while work-

ing with the TA before their methadone treatment, they

had violated a TA rule prohibiting heroin use. In each

case, however, the TA’s decision to discharge was not

grounded on any violation of the heroin rule, but rather

solely on use of methadone. Since this reason was uncon-

stitutional, as above explicated, the court erred in denying

individual relief.

The TA’s argument against individual relief amounts

to an attempt to evade the full ferce of the district court's

holding. The TA first discharged the three employees for

one reason and then years later, when that reason was held

7a

to be illegal, it sought to avoid any remedy for its wrong

by asserting other reasons, never before articulated, why

the employees could have been discharged at an earlier

time. In the case of such illegal discharges, the wrong

done by the employer consists not of discharging the em-

ployee but of discharging him for an illegal reason. It is

irrelevant to the consideration of a remedy for that wrong

that the wrong might have been avoided by a discharge for

a legal reason. C/. NLRB vy. George J. Roberts & Sons,

Ine., 451 F.2d 941, 945 (2d Cir. 1971) (if discharge of em-

ployee occurred even partially for motive that violated

labor laws, he has suffered a remediable wrong, even if

ample valid grounds existed for his discharge); NLRB v.

Pembeck Oil Corp., 404 F.2d 105, 109 (2d Cir. 1968) (same),

vacated on other grounds, 395 U.S. 828, 89 S.Ct. 2125, 23

L..Ed.2d 737 (1969). The wrong being proven, the only

question remaining is how best to make the discharged em-

ployee whole for the violation of his rights. Cf. Franks v.

Bowman Transportation Co., 424 U.S. 747, 763-64, 96 S.Ct.

1251, 47 L.Md.2d 444 (1976) (remedies under Title VIT of

1964 Civil Rights Act for victims of employment discrimi-

nation).

Certainly nothing in the record here indicates that the

TA at the time of the methadone discharges considered

alternatively discharging Beazer, Reyes, and Wright for

violation of the heroin use rule. All indications are to the

contrary, that the current assertions of the heroin use

ground amount to “‘counsel’s post hoc rationalizations,’ ”

FPC vy. Texaco, Inc., 417 U.S. 380, 397, 94 S.Ct. 2315, 41

L.Ed.2d 141 (1974), quoting Burlington Truck Lines, Inc.

v. United Siates, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Bd.2d

207 (1962). As for other grounds on which the three indi-

viduals might have been discharged—such as Beazer’s al-

8a

leged poor attendance record—these were also not raised

until after the district court had held the methadone ground

unconstitutional. In any event, the district court examined

the records and found these grounds insufficient, and if

such a traditional employment problem arises after these

three individuals are reinstated, that would provide an

independent ground for a new discharge.

The remedies of hiring and back pay were ordered by

the district court for two of the individual plaintiffs, and

we affirm that holding as consistent with making those

plaintiffs whole for the denial of their constitutional rights.

We further believe that the same remedies should be or-

dered for Beazer, Reyes, and Wright, who are in essen-

tially the same position as the other two in having lost or

been denied employment for an illegal reason. We accord-

ingly reverse the judgment as to these three plaintiffs and

remand to the district court for a determination of the

positions to which they should be reinstated and the amount

of back pay due to them.

Judgment in accordance with opinion.

9a

APPENDIX B

Opinion and Judgment of the United States Court of

Appeals, Second Circuit, Entered February 1, 1978

UNITED STATES COURT OF APPEALS

Seconp Circuit

At a stated term of the United States Court of Appeals,

in and for the Second Circuit, held at the United States

Court House, in the City of New York, on the First day of

February, one thousand nine hundred and seventy-eight.

76-7295

77-7092

—<—

Cart A. Beazer, et al.,

Plaintiff s-A ppellees-

Cross-Appellants,

—V,—

New York Crry Transit Avurnonrirty, et ai.,

Defendants-A ppellants-

Cross-Appellees,

—<—_>_

A petition for rehearing containing a suggestion that the

action be reheard in bane having been filed herein by counsel

for the appellants-cross-appellees, and no active judge or

judge who was a member of the panel having requested

that a vote be taken on said suggestion,

Upon consideration thereof, it is

Ordered that said petition be and it hereby is Dentep.

/s/ Irvine R. Kaurman

Chief Judge

Irving R. Kaufman

10a

UNITED STATES COURT OF APPEALS

Seconp Circuir

At a Stated Term of the United States Court of Appeals,

in and for the Second Circuit, held at the United States

Court House, in the City of New York, on the first day of

February, one thousand nine hundred and seventy-eight.

Present:

Hon. Watrer R. Mansrietp,

Hoy. James L. Oakes,

Circuit Judges.

Hoy. Cuarues L. Brreant,

District Judge.

76-7295,

77-7092

-<>

Cart A. Beazer, et al., ;

Plaintiff s-A ppellees-

Cross-Appellants,

—vV -

New York City Transir Avruonrrry, et al.,

Defendants-A ppellants-

Cross-Appellees.

—<—f>——

A petition for a rehearing having been filed herein by

counsel for the appellants-cross-appellees,

Upon consideration thereof, it is

Ordered that said petition be and hereby is Dentep.

/8/ A. Danter Fusaro

A. Daniel Fusaro

Clerk

lla

APPENDIX C

Opinion and Judgment of the District Court of the

Southern District of New York, Entered August 6, 1975

——

Cart A. Beazer, et ai.,

Plaintiffs,

af au

New York Crry Transit Auruorrry, et al.,

Defendants.

—

No. 72 Civ. 5307.

UNITED STATES DISTRICT COURT, S. Db. NEW YORK

Aug. 6, 1975.

Erie D. Balber, Mark C. Morril, Elizabeth B. DuBois.

Legal Action Center for the City of New York, New York

City, for plaintiffs.

Edward W. Summers, Brooklyn, N. Y., and Gilbert T.

Dunn, of counsel, for Transit Auth.

A. Michael Weber, Brooklyn, N. Y., Asst. Corp. Counsel,

for Civil Service Commission.

William A. Roskin, New York City, for Dept. of Person-

nel, Civil Service Commission.

OPINION

Grizsa, District Judge.

This is a class action against the New York City Transit

Authority (“TA”) and the Manhattan and Bronx Surface

12a

Transit Operating Authority (“MABSTOA”) and certain

of their officials. For convenience, both of these entities will

usually be referred to hereafter collectively as “the TA.”

Also sued are the New York City Civil Service Commis-

sion and the New York City Personnel Department and cer-

tain officials thereof.

The aciion challenges the blanket exclusion from any

form of employment in the New York City subway and bus

systems of all former heroin addicts participating in metha-

done maintenance programs, regardless of the individual

merits of the employee or the applicant. Plaintiffs also al-

lege that there is a similar exclusionary policy even against

former heroin addicts who have suecessf ully concluded their

participation in a methadone program.

The amended complaint alleges that this policy violates

the due process and equal protection clauses of the Four-

teenth Amendment, and federal civil rights statutes, 42

U.S.C. $§ 1981 and 1983. The claim is that there is no legal

basis for classifying all present and former methadone

maintenance patients as unemployable for any position in

the TA.

Plaintiffs also allege that the exclusionary policy has a

disparate impact on blacks and Hispanics, resulting in viola-

tion of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. §§ 2000e et seg.

Jurisdiction is invoked under 28 U.S.C. §§ 1331(a) and

1343(3) and (4), and also 42 U.S.C. $§ 2000e-5(f) (3).

Plaintiffs seek declaratory and injunctive relief on behalf

of the class, and certain monetary relief on behalf of the

named plaintiffs.

13a

Parties

Lhe Four Named Plaintiffs

Carl A. Beazer, a black, is 40 years old. Beazer started

working for the TA in 1960 as a subway car cleaner. He was

promoted to subway conductor in 1961, and was further pro-

moted to towerman in 1966. Beazer was dismissed from his

employment on November 26, 1971 after a heroin addiction

problem came to light.

Beazer had been a heroin addict since about 1952. This

addiction continued during virtually the entire time of his

employment by the TA, lasting until May 1971, when he

entered into the methadone maintenance program of the

Veterans Administration. He has been a successful par-

ticipant in the methadone maintenance program since that

time. The uncontradicted evidence is that, like many new

methadone patients, he experimented briefly with the re-

sumption of heroin during the early days of his methadone

treatment, but he has been entirely free of heroin or other

illicit drug use for over three years. Beazer ceased using

iethadone in November 1973.

Following his dismissal from the TA, Beazer has been

steadily employed—first as a counselor in the Detoxification

Program of the Veterans Administration, then as a super-

visor with the Addiction Research and Treatment Corp. (en-

gaged in drug rehabilitation work) and now as a Division

Chief with an organization known as Wildcat Services,

which employs methadone patients to perform building

maintenance work.

The TA’s Impartial Disciplinary Review Board made a

finding that Beazer was handling his job at the TA compe-

tently at the time of the termination proceedings, while he

was participating in the methadone program. Beazer was

l4a

nevertheless terminated for violation of the TA’s rule

against narcotic usage.

Beazer’s employment in his various positions since leav-

ing the TA appears to have been in all respects satisfac-

tory. Beazer was formerly married but is divorced.

Jose R. Reyes, an Hispanic, is 29 years old. Reyes was

employed by the TA in 1968 as a Maintainer’s Helper—

Group B (Mason), and in 1970 was promoted to Ventila-

tion and Drainage Maintainer. Reyes was dismissed on

January 20, 1972, after a medical examination showed evi-

dence of the use of methadone.

Reyes was a heroin user from about 1961 until February

1971, when he enrolled in a methadone maintenance pro-

gram at St. Claire’s Hospital. This program is under the

supervision of the Beth Israel Medical Center. The un-

contradicted evidence is that Reyes has been a satisfactory

participant in the methadone maintenance program. Reyes

is still maintained on methadone, although he is in the

process of withdrawing.

Following his dismissal from the TA, Reyes was em-

ployed in the methadone maintenance program of Mount

Sinai Hospital. At present he is a full-time student at

Fordham University. Reyes is married and has two chil-

dren.

Malcolm Frasier, a black, is 31 years old. In February

1971 Frasier applied for a position as a Bus Operator

with MABSTOA, but was rejected because his driver’s

license had been suspended. Frasier applied for the same

position again in early 1973. However, in March 1973,

when Frasier reported for processing he disclosed that

he was a methadone maintenance patient. He was there-

fore rejected for the position of Bus Operator. Frasier

15a

also applied at about this time for the position of Bus

Cleaner, but in April 1973 was rejected because of his

former methadone use.

Frasier used heroin from about 1968 until his entry into

the Mary Scranton Foundation methadone maintenance

program in October 1972. He was a successful participant

in this program, and terminated the use of methadone in

March 1973.

From about 1964 to early 1974 Frasier was employed as

a truck driver and a taxicab driver. Since early 1974

Frasier has been a shipping clerk for Baker, Knapp &

Tubbs Furniture Co.

Francisco Diaz, an Hispanic, is 40 years old. In 1970

Diaz applied at the TA for the position of Maintainer’s

Helper—Group D (Sheet Metal). Diaz was rejected when

he disclosed that he was a methadone maintenance patient.

Diaz was a heroin user commencing about 1950 until he

entered the methadone maintenance program of Beth Israel

Medical Center in December 1968. Diaz continues to par-

ticipate in the methadone program.

Out of the four named plaintiffs, Diaz is the only one

about whom any genuine question has been raised regard-

ing his conduct while on the methadone program. Various

clinical notes indicate suspicions of illicit narcotics use

and alcohol use.

However, Diaz has a long record of stable employment.

From 1962 until 1973 he was employed as a sheet metal

worker. Since 1973 he has been employed as a helper in

a commercial bakery. There is no indication of any de-

ficiency in Diaz’s performance in either job. Diaz is

married and has a wife and children.

l6a

The Class

Basically the class represented by the named plaintiffs

consists of all those persons who have been, or would in

the future be, subject to dismissal or rejection as to em-

ployment by the TA on the ground of present or past

participation in methadone maintenance programs.

At one point in the proceedings there was consideration

as to whether the class should be expanded to cover former

heroin addicts who had become drug-free without the use

of methadone. However, it has been agreed by all parties,

with the concurrence of the court, that the class should not

include this latter group.

Defendants

The TA is a public benefit corporation organized under

the laws of the State of New York. The TA operates the

subway system of New York City and certain bus lines in

the city.

MABSTOA is also a publie benefit corporation organ-

ized under New York law, and is a subsidiary of the TA.

It operates certain bus lines in New York City.

Defendant William J. Ronan was chairman of the TA

and MABSTOA from March 1968 until May 1974.

Defendant David Yunich succeeded to the above posi-

tions in May 1974.

Defendants William L. Butcher, Lawrence R. Bailey,

Harold L. Fisher, Constantine Sidamon-Eristoff, Donald

H. Ellito, Edwin G. Michaelian and Mortimer Gleeson,

along with defendant Yunich, constitute the total member-

ship of the TA and the directors of MABSTOA.

Defendants Frederic B. Powers and William A. Shea

were members of the TA and were directors of MABSTOA

17a

at the time this action was originally filed, and were sub-

sequenily succeeded by defendants Michaelian and Sida-

mon-Eristoff.

Defendant Wilbur B. McLaren is Executive Officer in

charge of labor relations and personnel for the TA.

Defendant Louis Lanzetta is Medical Director of the

TA.

Also joined as defendants are the Civil Service Commis-

sion of the City of New York and the Personne] Depart-

ment of the City of New York: Harry I. Bronstein,

Chairman of the Civil Service Commission and Director

of the Personnel Department; and David Stadtmauer and

James W. Smith, members of the Civil Service Commis-

sion.

In the case of all individuals, the amended complaint

names also their “successors in office.”

Defendants’ Policy Regarding Methadone

It is the general policy of the TA that no person using

narcotic drugs may be employed. Rule 11(b) of the TA’s

Rules and Regulations provides:

“(b) Employees must not use, or have in their pos-

session, narcotics, tranquilizers, drugs of the Ampheta-

mine group or barbiturate derivatives or para-

phernalia used to administer narcotics or barbiturate

derivatives, except with the written perinission of the

Medical Director—Chief Surgeon of the System.”

Methadone is regarded as a narcotic within the meaning

of Rule 11(b). It is stipulated that no written permission

has ever been given by the Medical Director for the em-

ployment of a person using methadone,

18a

The effect of this policy is that, if it is revealed that a

current employee of the TA is a user of methadone, he will

be discharged, or if an applicant for employment is a user

of methadone, he will not be employed. This poliey applies

to all positions in the TA regardless of whether they are

operating or nonoperating positions. Moreover, the policy

operates as an absolute exclusion—no consideration being

given to individual factors such as recent employment his-

tory, successful adherence to a methadone program, or

evidence of freedom from heroin use.

The situation is not entirely clear with respect to the

policy of the TA regarding persons who have successfully

concluded participation in a methadone program. The rea-

son that the policy is not fully erystalized is that the ques-

tion has not arisen in practice to any appreciable extent.

It is clear that a relatively recent methadone user would

be subject to the blanket exclusionary policy. However,

the TA has indicated that there might be some flexibility

with respect to a person who had once used methadone,

but had been free of such use for a period of five years

or more. But even on this point, there is no official direc-

tive indicating that the person would be considered for

employment.

The reasons given by the TA as a basis for this policy

will be dealt with in detail later in this opinion. They can

be summarized now as follows. Methadone maintenance,

as a treatment for heroin addiction, has been developed

relatively recently. The TA contends that the use of

methadone in place of heroin is merely the substitution

of one narcotic for another. The TA asserts that metha-

done maintenance treatment fails to a significant degree in

remedying the basic problems of heroin addiction—with

the result that a methadone maintenance patient embodies

see laa

19a

the underlying character defects which caused him to turn

to heroin in the first place, and that there is a substantial

risk that such a person, while on methadone, will revert

to heroin or turn to other drugs or alcohol abuse. The TA

contends also that there are significant adverse physio-

logical effects from methadone itself, which would impair

the performance of such person as an employee even if

he faithfully refrained from heroin or other illicit drugs

or aleohol abuse. The TA further contends that its opera-

tions involve such serious problems of safety, both with

respect to the public and to the employees, that they can-

not prudently employ present or past methadone patients.

Finally, the TA argues that there is no satisfactory way

of screening the reliable methadone patient from the un-

reliable, so that it is administratively necessary to have a

blanket exclusionary policy.

Summary of Conclusions

I have concluded that the blanket exclusionary policy of

the TA against methadone maintenance patients is con-

stitutionally invalid. Plaintiffs have more than sustained

their burden of proving that there are substantial num-

bers of persons on methadone maintenance who are as fit

for employment as other comparable persons.

No one can have the slightest doubt about the heavy

responsibilities of the TA to the public, including their duty

respecting the safety of millions of persons who are car-

ried on its subways and buses. However, in my view, the

blanket exclusionary policy against persons on methadone

maintenance is not rationally related to the safety needs,

or any other needs, of the TA.

I have concluded that the policy is the result of a mis-

understanding by the TA regarding the nature and effects

20a

of methadone maintenance. I do not say this in any spirit

of criticism. The information about methadone maintenance

in the public domain is all too fragmentary and confusing.

Myths and misconceptions abound. On the other hand, the

trial of this case has afforded a unique opportunity to

explore in depth the somewhat controversial issues sur-

rounding methadone. A balanced and realistic view of the

subject is possible as a result.

I should note that after about six days of trial the

parties advised me that they were virtually finished with

the presentation of their evidence. However, I was con-

cerned about what appeared to be a disproportionately

one-sided array of proof. Plaintiffs had introduced the

testimony of an impressive group of experts, corroborated

by laboratory and other tests, to the effect that a former

heroin addict properly “stabilized” on methadone is free

of undesirable narcotic effects and is entirely normal as

regards mental and physical capabilities. The evidence

demonstrated that methadone maintained persons were

successfully employed in jobs of many kinds.

As against this, the TA had brought forward a single

expert witness, a pharmacologist, to present theories about

certain adverse characteristics of methadone. However,

the knowledge and experience of this witness regarding

methadone maintenance were so limited that his testimony

was of little value. The TA called its personnel director

and medical director, who both testified to certain theories

they held regarding methadone maintenance. However,

these officials naturally lacked the depth of expertise pos-

sessed by plaintiffs’ witnesses on this subject.

The situation raised a serious question as to whether

all sides of the problems involved in the case had been

thoroughly explored, or whether any negative aspects of

6 tel oe

i ee

2la

methadone and methadone maintenance programs existed

that had not been presented. I therefore requested the

attorneys for the parties to submit proposals for further

witnesses. The result was an additional nine days of trial

at which exhaustive effort was made to probe the relevant

questions with experts of varying points of view.

The picture which emerges from all the evidence is

basically this. There are some 40,000 persons in New York

City on methadone maintenance. It is, at present, the

most widely used method for rehabilitating heroin addicts.

Among these 40,000 persons on methadone maintenance

there is a great variation (as there is in the population as

a whole) with regard to characteristics such as educational

qualifications, employment skills and background, anti-

social behavior, alcohol usage, and abuse of illicit drugs.

But the crucial point made so strongly by plaintiffs’ wit-

nesses was never convincingly challenged—that metha-

done as administered in the maintenance programs: can

successfully erase the physical effects of heroin addiction

and permit a former heroin addict to function normally

both mentally and physically. It is further proved beyond

any real dispute that among the 40,000 persons in New

York City on methadone maintenance (as in any compa-

rable group of 40,000 New Yorkers), there are substantial

numbers who are free of anti-social behavior and free of

the abuse of alcohol or illicit drugs; that such persons are

capable of employment and many are indeed employed.

It is further clear that the employable can be identified

by a prospective employer by essentially the same type of

procedures used to identify other persons who would

make good and reliable employees. Finally, it has been

demonstrated that the TA has ways of monitoring em-

ployees after they have been hired, which can be used

22a

for persons on methadone maintenance just as they are

used for other persons employed by the TA.

This proof applies with equal, if not greater, force to

those former heroin addicts who have successfully com-

pleted participation in a methadone program.

I have therefore concluded that the present blanket ex-

clusionary policy of the TA against employing, or consider-

ing for employment, any past or present methadone main-

tained person regardless of his individual merits, is un-

constitutional.

Facts

Heroin

It will be important to understand the differences be-

tween methadone and heroin.

Heroin is a nareotie which is generally injected into the

bloodstream by a needle. It is a central nervous system

depressant. The usual effect is to create a “high’—

euphoria, drowsiness—for about thirty minutes, which then

tapers off over a period of about three or four hours. At

the end of this time the heroin user experiences sickness

and discomfort known as “withdrawal symptoms.” There

is intense craving for another shot of heroin, after which

the cyele starts over again. A typical addict will inject

heroin several times a day.

There are variations in the severity of heroin addiction.

For instance, it is possible for a heroin addict to take

moderate amounts of the drug—just enough to avoid the

withdrawal symptoms, without producing the euphoric

highs. Such a person might function somewhat normally.

However, this type of controlled heroin addict is very rare.

cepeieeeen bake en & qe. wind

ouee.

ee ere

ee eee

Methadone

Methadone is a synthetic narcotie and a central nervous

system depressant. If injected into the bloodstream with a

needle, it can produce basically the same effects as heroin.

Methadone has been used, under medical controls, as a

pain killer. Also, methadone is used in “detoxification

units” of hospitals to take addicts off of heroin. This is

done by switching a heroin addict to methadone and gradu-

ally reducing the doses of methadone to zero over a period

of about three weeks. The patient thus detoxified is drug

free. Moreover, it is hoped that the program of gradually

reduced doses of methadone leaves him without the with-

drawal symptoms, or the “physical dependence” on a nar-

cotie.

It appears that these detoxification programs, without

a follow-up of further treatment are frequently unsuccess-

ful, and that there is a high incidence of reversion to

heroin. There are various theories about why this is so.

Persons involved in programs such as Phoenix House

and Odyssey House take the view that the reason that

“physical” detoxification is not enough is because the un-

derlying causes of heroin addiction are psychological

problems and problems of life-style, which must be ad-

dressed in an appropriate manner.

On the other hand, there is a body of opinion which holds

that, in addition to psychological and life-style problems,

there are some physical problems from heroin addiction

which persist after any short-run detoxification. This

theory is that there is a physical discomfort or a physical

dependence, which requires treatment. The major treat-

ment method thus far devised is maintenance on stable

doses of methadone. Such methadone maintenance is

24a

feasible because of the following characteristics of meth-

adone.

We are dealing here with methadone taken orally. When

taken orally, methadone is radically different from heroin.

Whereas heroin moves rapidly in and out of the blood-

stream causing violent highs and lows, oral methadone

passes into the body tissues, and then is fed into the blood-

stream gradually over a period of twenty-four hours or

more. There is a relatively constant or stable level of

methadone in the bloed during this time. When a person

is first on oral methadone he may experience narcotic

effect in some degree—such as euphoria, and drowsiness.

But it has been found that the body will become tolerant

to oral methadone rather quickly, and that after this toler-

ance is achieved, any narcotic effect ceases. The evidence

is that a person who has attained this tolerance can take

a constant dose of methadone once a day and has neither

the euphoric effects nor the withdrawal symptoms asso-

ciated with heroin.

The question arises as to what purpose there is in taking

methadone if no euphoria or pleasurable effects are ob-

tained. According to the expert evidence, the purpose is

two-fold: First, methadone produces what is called a

“blockade” or “cross-tolerance,” which prevents a metha-

done user from experencing any “high” from injecting

heroin. It should be noted that this cross-tolerance does

not apply when the methadone user attempts to use sub-

stances other than heroin—such as cocaine, barbiturates,

amphetamines, or alcohol. Second, experience indicates

that former heroin addicts may have some symptoms of

discomfort or drug dependence for a fairly long period of

time after discontinuing the use of heroin. The nature

of these symptoms obviously varies to some extent from

MOND ee ee

25a

individual to individual. The precise cause of such

symptoms is a matter of some debate—as to whether the

cause is physical or psychological or a combination of

both. These matters do not require a detailed explora-

tion in this opinion. The evidence convinces me that the

symptoms we are talking about are what would generally

be considered medical or physical symptoms. Clearly they

are not, in and of themselves, mental or psychiatrie de-

ficiencies or disurders. In any event, the uncontradicted

evidence is that these symptoms are cured by stable dosage

of methadone.

Origin of Methadone Maintenance Programs

It is well known that methadone maintenance, as a treat-

ment for heroin addiction, originated with Dr. Vincent

Dole and his wife, Dr. Marie Nyswander, at Rockefeller

University. Dr. Dole testified in this case.

In 1963 Dr. Dole became Chairman of the New York

City Health Department’s Health Research Committee on

narcotics, and entered into an intense research activity

regarding narcotics. One of his projects was to determine

if narcotics addicts could be stabilized on medically con-

trolled doses of drugs. In other words, could the radical

highs and lows be eliminated by some constant dosage

of a drug? He found that this was impossible with short-

acting injectible drugs such as heroin and morphine. How-

ever, the results were radically different when he tried

oral methadone. Drs. Dole and Nyswander found through

their experiments that heroin addicts could become stabi-

lized on constant doses of methadone with the results de-

scribed earlier in this opinion.

A demonstration methadone maintenance program was

set up at the Beth Israel Medical Center. Twelve patients

26a

were admitted in the first group and by 1965 about 200

patients were being treated. At this time, Dr. Harold R.

Trigg, who was head of the Narcotics Detoxification Serv-

ice at Beth Israel, became interested in the methadone

maintenance project. Dr. Trigg later became, and still is,

Chief of the Methadone Maintenance Program of the Beth

Israel Medical Center. At the present time Beth Israel

treats about 6500 persons on methadone maintenance in

35 separate clinics. Dr. Trigg testified in this case.

As indicated earlier in this opinion, there is substantial

agreement that many persons attempting to overcome

heroin addiction have psychological or life-style problems

which reach beyond what can be cured by the physical tak-

ing of doses of methadone. Dr. Dole and his associates

were acutely aware of this. Consequently the pattern

which was developed in the Beth Israel program and in

methadone maintenance programs subsequently established

was to provide a variety of services including counseling,

medical and psychiatric care, educational and vocational

guidance, and recreational facilities. Certain minimum

standards with respect to these services are set forth by

both federal and state regulations.

Current Methadone Maintenance Programs

Today there are approximately 75,000 persons under

methadone maintenance treatment in the United States, of

which about 40,000 are in New York City.

The methadone maintenance programs are of two basic

types. The first type is referred to as “public” or “semi-

public.” These programs are non-profit. The second type

is referred to as “private.” These programs are operated

for profit.

0 ER MEO oir ale Be RR in te 0 Met a P Reiter

27a

The five major public or semi-public methadone main-

tenance programs in New York City are:

(1) The Beth Israel program, referred to above, with

35 clinics treating 7100 patients ;*

(2) A program administered by the City of New York

with 39 clinics treating 12,400 patients (hereafter

referred to as “the City program”) ;

(3) A program administered by the Bronx State Hospital

and the Albert Einstein College of Medicine, with 7

clinies treating about 2400 patients;

(4) A program operated by the Addiction Research and

Treatment Center (ARTC) with 6 clinics treating

about 1200 patients; and

(5) A program operated by the New York State Drug

Abuse Control Commission (DACC), with 8 clinics

treating about 1100 patients.

The total number of patients treated in public or semi-

public programs is about 26,000. It appears that these pro-

grams are financed almost entirely by federal, state and

city funds.

There are about 25 private programs in New York City

treating a total of about 14,000 patients.

All methadone maintenance programs throughout the

United States are required to comply with regulations of

the Food and Drug Administration, promulgated December

15, 1972, 21 C.F.R. § 130, et seg. Programs in New York State

are required to comply, in addition, with the somewhat

‘The figures given in this section are from the testimony of Dr.

Frances Gearing, of the Columbia University School of Public

Health. These figures are as of December 31, 1974.

28a

more stringent regulations of the New York Drug Abuse

Control Commission, promulgated in May 1974, 14 N.Y.C.

R.R., Part 2021.

Compliance with these regulations is monitored by the

DACC, which acts on behalf of the state and also on be-

half of the federal government by contract.

Both the federal and state regulations set forth require-

ments for the types of persons who can be admitted to the

program, the kinds of services which must be rendered,

the staffing of the programs, the days and hours of opera-

tion and record keeping, controls on the administration of

methadone, and tests for illicit drug usage.

A number of the clinics under the aegis of both the Beth

Israel and the City programs are located in hospitals not

operated either by the City or by Beth Israel. These ar-

rangements are pursuant to contract. The standards for

the clinics are set by Beth Israel and the City. The hospi-

tals provide facilities and assist in various ways such as

consultation in the hiring of personnel. Fourteen of the

Beth Israel clinies and 36 of the City clinics are operated

in this way. Among the hospitals where City methadone

maintenance clinics are located are New York Hospital,

Knickerbocker Hospital, Harlem Hospital, Bellevue Hospi-

tal, Eimhurst Hospital and Beekman Downtown Hospital.

The Course of Methadone Maintenance T reatment

In order to become enrolled in a methadone program,

a person is supposed to have been a heroin addict for at

least two vears. In other words, the sole purpose of these

programs is for the eure of heroin addiction.

When an applicant is accepted for a program, the first

step is to have him detoxified from heroin and from any

other illicit drug abuse or aleohol abuse. For this purpose

29a

a short period of in-patient treatment at a hospital is

usually required.

In connection with this process, a stable or constant

dosage of methadone is worked out to be administered to

the patient over a protracted period of time. Among

methadone maintenance programs there are basically two

theories regarding maintenance on stable doses. There

are what are termed “high dose” programs, where the dos-

age is in the range of 80-100 milligrams per dose. Beth

Israel is a high dose program. The philosophy of such

programs is to give the patient sufficient methadone to

make sure that any physical dependence or craving for

heroin will be eliminated and to make sure that the block-

ade or cross-tolerance against heroin is effective. The pro-

ponents of such programs further believe that there should

be no pressure upon methadone patients to discontinue

methadone; that there is nothing intrinsically wrong or

harmful about the usage of methadone over an indefinite

period of time; that such usage is essentially medicinal;

and that the sole criterion which should be used to de-

termine whether or not the patient should be on methadone

is his ability to function properly in society.

The “low dose” programs have a somewhat different

philosophy. Their proponents believe that the proper goal

for a methadone maintenance program should be to have

the patient on the program as short a time as possible,

that the proper goal of a methadone maintenance program

should be detoxification not only from heroin, but also

from methadone. They believe that detoxification from

low doses of methadone is easier than from high doses,

and thus favor the low doses. Addiction Research and

Treatment Corp., which has clinics in Brooklyn and Har-

lem, conducts a low dose program.

30a

However, except for the differences noted above, the

basic functioning of the high dose and low dose programs

is similar. After detoxification from illicit drug abuse, the

patient commences taking constant doses of methadone

each day. Under federal and state regulations, a patient

is required to appear at the clinic and take his dosage of

methadone in the presence of a staff member at least six

six days a week for the first three months. The seventh

day’s dose may be taken at home. After a certain period

of time, if the patient’s conduct is satisfactory, he may be

permitted to reduce his attendance at the clinic and take

more of his daily doses at home. However, even after two

years of participation in a program, the patient is re-

quired to make a minimum of two visits to the clinie each

week.

The patient must participate in counseling—at first on

a daily basis, and less frequently as time goes on.

The patient must be observed in various ways to de-

termine whether he is abusing drugs or alcohol. It appears

that methadone patients, at least in the first stages of

treatment, sometimes attempt to return to heroin. But the

uncontradicted evidence is that the blockade or cross-toler-

ance is indeed effective, and that persons on methadone

are no longer able to find satisfaction in heroin; and then

generally stop trying. However, for one reason or another,

such as a possible lapse in methadone dosage, a patient

might occasionally revert to heroin in a serious fashion.

In any event, urine tests for heroin usage are required

by federal and state regulations to be administered at

least once a week.

The evidence further shows that, by the use of a some-

what different chemical analysis, a urine test will reveal

other drugs such as barbiturates, and amphetamines, al-

en ee

3la

though detection of cocaine is difficult. Federal regulations

require urine tests once a month for evidence of drugs

other than heroin. It further appears that clinics such as

Beth Israel take steps to make sure that their patients

sre frequently observed to determine whether there is

any drug abuse revealed by behavior or appearance. These

clinics also watch closely for signs of excess drinking.

These clinics also take precautions against abuse of

methadone. One problem is the possibility that a patient

may take excessive quantities of methadone, over and

above the dose prescribed by the clinic. It is conceivable

that he might do this by obtaining methadone on the black

market, or by taking two or three days’ doses at one time

where the clinic has given him methadone to be admin-

istered outside the clinic. A different type of problem is

the possibility that a methadone patient might sell his

methadone outside the clinic, instead of taking it himself.

Various precautions are taken to guard against either

type of abuse—including strict control of the issuance of

methadone doses, observations of the behavior of the pa-

tients, and observation of any signs of manipulation (1.e.,

stories by the patient of losing his methadone, ete.).

It appears that during the first few months that a patient

is on a methadone maintenance program, it will become

reasonably apparent whether he is genuinely determined

to rid himself of illicit drug usage and is conducting him-

self accordingly. There is a certain proportion of metha-

done maintenance patients who do not thus conform—who

are showing evidence of illicit drug use of excessive

drinking, who make little or no attempt at rehabilitation,

who loiter or otherwise engage in undesirable conduct.

These are what those experienced in the field call the

“visible” cases. Many of them drop out of the programs

32a

within the first few months or the first year. Many of

them are discharged. In some cases such patients are kept

on in the hope of improvement. But their situation is

evident to clinic personnel. As far as employment is con-

cerned, the evidence indicates convincingly that the clinic

personnel are not likely to refer or recommend such per-

sons.

For patients who do perform satisfactorily on the pro-

gram, treatment will generally continue a year or more.

The longest term of methadone maintenance treatment re-

vealed in the record in the present case is four vears.

Often however, the patient reaches a point where he de-

sires to terminate his usage of methadone. He believes

that he can do without it, and wishes to avoid the trouble

of frequent appearances at the clinic. In such a case, the

dosage of methadone is reduced to zero over a period of

time. Many patients, after terminating usage of metha-

done, function normally without it. Some find that they

return to methadone maintenance.

Physical Effects of Methadone

Two basic questions arise with respect to the employ-

ability of methadone maintenance patients. The first is

whether methadone maintenance patients will have any

narcotic effects or other side effects related to the usage

oi methadone. The second is whether the patient will re-

turn to heroin, or will abuse other illicit drugs or aleohol.

Both of these questions have been referred to in earlier

portions of this opinion. However, they merit further

discussion.

As an initial proposition, one might assume that metha-

done, being a narcotic and a central nervous system de-

OLLIE PO ER et i

33a

pressant such as heroin, raust inevitably produce narcotic

effects such as euphoria, drowsiness, inattention, departure

from reality, and slowing of reactions.

The TA’s expert witness, Dr. Vincent Lynch, a pharma-

cologist, testified that metnadone “undoubtedly” occupies

parts of the brain which would affect “cognitive faculties,

the ability to respond voluntarily in certain situations.”

Dr. Lynch also testified that even in a person who has been

maintained on a stable dose of methadone for a period of

time, the person’s functions would be inhibited for a short

period of time each day after taking his dose of methadone.

Dr. Lynch disputed the idea that a methadone patient

could really be “stabilized” on a constant dose. His opinion

was that a tolerance would be attained which would make

methadone ineffective to prevent the discomfort or physical

dependence causing the heroin craving.

Considering Dr. Lynch’s testimony in the light of the

evidence as a whole, I find Dr. Lynch's testimony to be too

speculative to be of much value. For instance, Dr. Lynch’s

methadone “tolerance” theory was not based on any tests

with human beings, and appears to ignore the marked

differences between methadone and other drugs such as

heroin.

The overwhelming weight of the evidence is to the effect

that a methadone maintenance patient can perform nor-

mally, and that undesirable side effects are lacking.

It appears that during the twelve years that have elapsed

since the initial investigations of methadone maintenance,

there has been a remarkably intensive effort to test and

observe methadone maintenance patients and to gather

statistics about their performance. Dr. Robert DuPont,

Jr., Director of the Special Action Office of Drug

Abuse Prevention in The White House, and Di-

34a

rector of the National Institute on Drug Abuse

in the Department of Health, Education and Wel-

fare, testified that there had been a “vast array of

tests” regarding the ability to drive vehicles, ability to

maneuver the hands, reaction to signals, sleep patterns,

sexuality, and that the evidence is “that the person who is

maintained on methadone performs within the normal

range of expectation of a normal population.”

The detailed results of a number of such tests were in-

troduced into evidence in this action, and indicated normal

behavior by methadone maintenance patients.

Dr. Vincent Dole testified regarding his many years of

observation of persons stabilized ex methadone, and

stated:

“Q. Doctor, has your physiological research or that of

your colleagues indicated that there is any disrup-

tion of the cognitive faculties when a person is main-

tained on methadone?

“A. No. On the contrary, we have much data by now

that the cognitive and other emotional and intellec-

tual faculties of the mind are normal. We have done

the types of tests that you already probably had re-

ported through Dr. Gordon’s laboratory on specific

things such as IQ measurements and various other

perceptual tasks. What probably is more important

to this point is now a very large record with some

tens of thousands of patients who have gone to

school and had high grades, who have accomplished

much in responsible jobs, in business and elsewhere.”

Regarding the possibility of a methadone maintenance

patient obtaining heroin-type euphoria, Dr. Dole testified

that many patients have come into methadone treatment

35a

centers “on the mistaken theory that they were going to

get a free ride and a free euphoria for a long time” and

that such patients have very soon discovered “that they

do not get euphoria.”

Dr. Paul Cushman, Jr., Director of the Methadone Main-

tenance Clinic of St. Luke’s Hospital (a clinic operated

under the direction of the Beth Israel Medical Center)

testified that he had seen thousands of methadone main-

tenance patients and that they are basically “indistinguish-

able” from “comparable non-drug people.” Dr. Cushman

testified that as to characteristics such as alertness, ability

to handle challenges, ability to perform work such as elee-

trical circuit work, welding, mechanical repairs, and so

forth—there is “no difference between a normal subject

and the methadone maintained patient after he has been

stabilized on his methadone.”

Dr. Irving Lukoff, of the Addiction Research and Treat-

ment Corporation, has been performing research for some

years with respect to the results of methadone mainte-

nance. Dr. Lukoff contributed much of the factual material

for an article entitled “Methadone, The Forlorn Hope” by

Edward J. Epstein in the Summer 1974 issue of The Public

Interest. This article raised a number of questions about

methadone maintenance, including the problem that many

persons who commence maintenance programs drop out

or are discharged.’ For purposes of the present case,

* Methadone maintenance has received both criticism and com-

mendation in articles, books—and an occasional television item.

The Epstein article questions certain of the medical theories

espoused by Dr. Dole and his associates and questions certain

statistics sometimes used to show the favorable results of methadone

maintenance. For instance, the Epstein article cites certain “evi-

dence” and authorities against the “blockade” theory of methadone.

Of course, my findings and conclusions in the present case

must rest on the testimony and other evidence introduced in

36a

the important point is that persons who remain in a metha-

done maintenance program for a substantial period of

time are the result of a “self-cleansing” process which goes

on in the program, according to Dr. Lukoff. Dr. Lukoff

testified that he has seen hundreds of patients maintained

on methadone who function normally in terms of all obvi-

ous signs, and that they are “functioning the way every-

body else does.”

Dr. Seymour Joseph, Deputy Commissioner of the New

York State Drug Abuse Control Commission, testified that

when a person is stabilized on methadone there are no de-

ficiencies in day-to-day conduct such as ability to think and

perform required functions.

Dr. Joyce Lowinson, who was responsible for the first

methadone maintenance unit under Dr. Vincent Dole, and

since 1968 has been in charge of the methadone mainte-

nance program at Bronx State Hospital, testified that par-

ticipants who are stabilized on methadone function

normally, and that there is “no way of distinguishing a

person on methadone from a person who is not on metha-

done” except by means of a urine or blood test revealing

the presence of the substance. In contrast to Dr. Lynch's

testimony that a person stabilized on methadone will feel

a narcotic effect for a period of time immediately after

taking his daily dose, Dr. Lowinson testified that such a

the case, rather than on the views of authors expressed in articles,

where these authors would not be subject to cross-examination

about the extent of their knowledge, ete. But 1 would note a state-

ment quoted with approval in the Epstein article by Dr. Avram

Goldstein, director of the Addiction Research Laboratory at Stan-

ford:

“Nothing I have said should be interpreted as ‘debunking’

methadone or derogating its importance. It is a fantastically

effective tool for bringing addicts into a new and helpful kind

of therapeutic environment.”

— + EPL bee 4a.

37a

person, when he takes the daily dose of methadone, “is in

no way changed, and is no different after he has taken his

medication.” Dr. Lowinson contrasted the taking of the

dose of methadone with what results from the injection

of heroin where there is the immediate “rush” or “high.”

There was also considerable evidence on the question of

whether methadone maintenance produces undesirable

“side effects.” The evidence is that, during the time pa-

tients are being brought up to their constant dosage of

methadone (a period of about six weeks), there may be

complaints of drowsiness, insomnia, excess sweating, con-

stipation, and perhaps some other symptoms. After the

patient is stabilized, he becomes tolerant to methadone

an side effeets diminish and largely disappear. How-

ever, some side effects may persist. For instance, in a

group of methadone maintenance patients studied by Dr.

Mary Kreek of Rockefeller University, 48% were ex-

periencing excessive sweating; 17% had constipation ;

16% had insomnia; 22% had some libido problem. How-

ever, the evidence is clear that these conditions do not

particularly differentiate this group from other parts of

the population. Moreover, except in rare cases, such con-

ditions have no effect upon employability. For instance,

the constipation problems could be cured by a common

laxative.

The TA referred at the trial to a “package insert” which

is required by FDA regulations to be included with metha-

done sold to physicians, hospitals, and clinics. The pack-

age insert contains a description of various matters, in-

cluding warnings about possible side effects. The package

insert states in part:

“Use in Ambulatory Patients—Methadone may im-

pair the mentai and/or physical abilities required for

38a

the performance of potentially hazardous tasks, such

as driving a car or operating machinery. The patient

should be cautioned accordingly.

“Methadone, like other narcotics may produce ortho-

static hypotension in ambulatory patients.”

There was extensive inquiry at the trial about the sig-

nificance of this warning, justifying in my view, the fol-

lowing findings: Warnings in package inserts such as

this one tend to include every possible adverse effect that

might occur under any circumstances of usage. Although

the side effects referred to in this warning might occur

where methadone is being used as a pain killer or for some

similar purpose, such effects do not occur in a person

stabilized on a constant dose of methadone.

To summarize my conclusions on the subject, I find that

a person maintained on a constant dose of methadone can

perform normally by every standard that relates to em-

ployability, and that, except in rare cases, there are no

side effects making such a person incapable of being em-

ployed. These, of course, are propositions which plain-

tiffs have consistently espoused. They have been tested

in every way that the participants of this trial could think

to test them. The overwhelming weight of the evidence is

in their support.

Illicit Drug and Alcohol Abuse

A prospective employer of a methadone maintenance

patient would naturally question the chances that such a

person would revert to heroin, or use other illicit drugs.

One aspect of the problem is the possibility that the metha-

done maintenance patient, unable to find further satisfac-

tion in heroin, might substitute other drugs or alcohol.

0 Ok Mcteene. alt peed fete. a ~ ~

39a

The TA contends that there are risks of large propor-

tions among methadone maintenance patients. The TA

relies on a study performed by Chambers and Taylor in

1970 to the effect that, in a group of methadone patients

in Philadelphia who had been under treatment for at least

24 months, 97.6% of them were found to use an illicit drug

at least once during a one-month period. The TA relies

on the testimony of Dr. Mitchell S. Rosenthal, director of

Phoenix House, which operates a “drug free” program

for the treatment of narcotic addicts—i.e., no methadone

or other drug is used following the initial detoxification.

In the opinion of Dr. Rosenthal, “cheating” by methadone

maintenance patients with illicit drugs had been shown

by studies to be in the magnitude of 70%. The only specific

study Dr. Rosenthal was able to refer to was the one by

Chambers and Taylor.

On the other hand, Dr. Rosenthal testified that a patient

in a methadone maintenance clinic is monitored so that his

use or non-use of drugs can be detected by an employer

in a way that does not exist for other employees who might

be abusing drugs.

Plaintiffs presented evidence that the conditions under

which the Chambers and Taylor study was performed

bore no resemblance to the conditions that exist today in

a properly conducted methadone maintenance program.

Moreover, plaintiffs presented statistics and estimates in-

dicating that the use of illicit drugs among methadone

maintenance patients involves a relatively small, and gen-

erally visible, minority.

Before going into plaintiffs’ evidence on this point,

certain observations are necessary. Although fairly de-

tailed information was presented about the major public

methadone maintenance programs, very little specific in-

40a

formation was provided regarding the private clinics.

Obviously, neither side wished to prolong the case to the

extent of subpoenaing witnesses from all, or even some,

of the 25 private clinics in New York City. There was

general testimony to the effect that the private clinics

might tend not to be as well run as the public programs.

There was also testimony indicating that the quality and

performance of the patients in private clinics might be

worse than that of patients in the public programs, al-

though the director of one of the public programs, ARTC,

testified that ARTC draws from the hardest of the hard

core addicts. The information about the private clinies is

not really sufficient to permit a conclusion that statisties

about matters such as drug abuse would be either better

or worse for the private clinics than for the public pro-

grams.

In any event, since the public programs treat about

26,000 out of the 40,000 methadone patients in New York

City, statistics and other information drawn from these

public clinies cover the majority of methadone mainte-

nance patients in New York City, and will be relied upon

with this in view.

The public clinies appear to be conscientious in accumu-

lating information about drug abuse. They also note in-

stances of problem drinking. In the case of drugs, this

information comes from the periodie urine tests. With

regard to drinking, it appears that the program person-

nel are trained to be sensitive to signs of such a problem.

The witnesses in this case basically agreed that metha-

done maintenance patients will sometimes attempt to “chal-

lenge” their methadone—i.e., attempt some usage of heroin.

This usually happens during the first weeks on a program,

GE etait Se. &

4la

although it can also happen later. Plaintiffs’ witnesses

were emphatic in their view that these attempts by a

person stabilized on methadone to return to heroin fail

because of the blockade or cross-tolerance effect. For in-

stance, Dr. Beny J. Primm, Executive Director of ARTC

testified :

“...a@ patient who is on methadone would have no rea-

son whatsoever, once stabilized, to again shoot heroin.

I want that absolutely clear. It is just pharmacolog-

ically impossible for him to realize any feelings from

the heroin because of the cross tolerance of methadone

and heroin.”

However, this blockade or cross tolerance effect does not

relate to drugs other than heroin, or to alcohol.

Dr. Trigg of Beth Israel testified that about 5,000 out

of the 6,500-7,000 patients in his clinies have been on

methadone maintenance for a year or more. He further

testified that 75% of this 5,000 are free from illicit drug

use.

Dr. Bihari of the City’s methadone maintenance pro-

gram testified that, for patients who have been in that

program more than six months only 4% have signs of

heroin usage in urine tests, and 11% have signs of other

drugs. Dr. Bihari testified that 6% of the City’s patients

have alcohol problems.

Dr. Lowinson of the Bronx State Hospital program

stated that, for patients who have been in that program

six months or more, 6-7% show some evidence of heroin

usage in urine tests, and another 12% show evidence of

usage of barbiturates or other sedative or hypnotic drugs.

Dr. Lowinson testified that 5% of the patients have alcohol

probiems.

42a

Dr. Primm of ARTC testified that, among his program’s

patients who have been in treatment a year or more, 60-

70% are adjusted sufficiently that they are free from any

drug or alcohol problem. Dr. Primm testified that his pro-

gram’s patients are drawn from the “hardest of the hard

core” addicts.

Dr. Kreek testified about a study relating to 129 of the

first patients in methadone maintenance programs. At the

time of the study these patients had been in programs

from three to about five years. There was evidence of

continued intermittent heroin abuse in the case of 2 out

of the 129. There was evidence of intermittent use of

other drugs in the case of 6 out of the 129, but these

other drugs included barbiturates and valium. Dr. Kreek

noted that valium is the second most frequently used drug

by the general population—second only to aspirin. There

was no indication of any cocaine use among the 129.

[ conclude from all the evidence that the strong majority

of methadone maintained persons are successful, at least

after the initial period of adjustment, in keeping them-

selves free of the use of heroin, other illicit drugs, and

problem drinking.

Employment

There is impressive evidence about successful employ-

ment among methadone maintenance patients. Seventy per-

cent of the Beth Israel patients who have been in the pro-

gram for a “period of time” are employed. Sixty percent

of those who have been in the Bronx State Hospital pro-

gram over a year are employed. In the City program,

45% are employed in paying jobs, 11% are homemakers,

and 6% are full-time students. Dr. Primm of ARTC., testi-

_ ancl

43a

fied that 35% of his program’s total population (including

those in the methadone program and those in a drug free

program) are employed. The percentage is greater for

the methadone program alone. In the DACC program, 80%

are employed.

A statistical study by Dr. Frances Gearing of the Colum-

bia University School of Public Health shows that for

four groups of patients studied, the percentage occupied

in gainful employment, homemaking, or school attendance

after one year were 59%, 63%, 41% and 34% respectively.

Consolidated Edison hires methadone maintenance pa-

tients. The policy of Consolidated Edison is to consider

for employment a former heroin addict who has performed

satisfactorily on a methadone maintenance program for

a minimum of one year. Con Ed has hired about 100

former addicts under this policy. Such employees have

satisfactorily occupied a variety of positions at Con Ed

including monitoring various types of controls, and work

on street crews. Con Ed advances such employees along

normal promotional lines in accordance with their per-

formance skills, the sole exception being that former

addicts are excluded from any nuclear facility in accord-

ance with Con Ed’s understanding of the law. Con Ed

believes that its experience with former addicts partici-

pating in rehabilitation programs has been successful. A

special study of the work of 13 Beth Israel patients at

Con Ed indicates that their performance was as good or

better than that of the average Con Ed employee.

The evidence further indicates that methadone mainte-

nance patients have been satisfactorily employed as sheet

metal workers, truck drivers, taxi drivers, drill press

operators, teachers, electricians, mechanics, draftsmen,

clerks, cashiers, bank tellers, and a great variety of other

44a

positions. Local employers who are now hiring methadone

maintenance patients at least on a trial basis are Chemical

Bank, New York Life, Metropolitan Life, J. C. Penney,

McGraw-Hill, Seagram, Columbia Presbyterian Hospital,

New York Telephone Company, New York Off-Track Bet-

ting Corporation, and others. An official of the Sheetmetal!

Workers International Association testified that his organi-

zation is bringing methadone maintenance patients into

its apprenticeship program, and that they are performing

work such as welding, using heavy machinery, and working

on scaffolding.

Dr. Joseph testified that there is a large segment of

methadone maintenance patients who become “non-visible”,

in that they are performing well and are free of serious

problems. With regard to employment, he testified:

“We have people in methadone maintenance programs

who are performing any and every type of service

in this city and state, ranging from being outstanding

members of the profession to laborers, going through

the gamut of electricians—you name it.”

According to Dr. Joseph there are thousands of such per-

sons.

Classification of Persons on Methadone Maintenance

There is certain other information in the record which

helps give perspective on the question of employability

of persons on methadone maintenance.

The witnesses from the Beth Israel program testified

that about one-third of the patients in that program, after

a short period of adjustment, need very little more than

the doses of methadone. The persons in this category

ee ee eh ee

45a

are situated fairly satisfactorily with respect to matters

such as family ties, education and jobs. Another one-third

of the patients at Beth Israel need a moderate amount of

rehabilitation service, including vocational assistance, for

a period of several months or about a year. A person in

this category may, for instance, have finished high school,

but may have a long heroin history and no employment

record. A final one-third of the patients at Beth Israel

need intensive supportive services, are performing in the

program marginally, and either will be discharged or will

be on the brink of discharge.

Dr. Harvey Gollance estimated that about 20% of Betli

Israel’s patients drop out of the program. At the Bronx

State Hospital 10% of the patients are discharged during

the first year.

Dr. Lukoff from ARTC described it this way. He stated

that about one-third of ARTC’s patients are “stereotype”

addicts, who have started on heroin in their teens, and

have had severe problems with family ties, education and

crime. The other two-thirds of the ARTC patients are

persons who started on heroin in their 20’s, who tend to

have finished school or military service, and who have

maintained better situations with respect to family ties

and employment. About 40-45% of the first third drop

out in the first year of treatment. About 75-80% of the

other two-thirds remain in the program.

The evidence indicates that problem patients—those who

are abusing drugs or alcohol and who are not making

progress in rehabilitation—are identifiable after about 3-6

months, if not sooner.

On the question of employability—many methadone pa-

tients (about 30% in the case of Beth Israel and Bronx

State) are employed when they enter the programs. Others

46a

are employed within a matter of weeks. In many cases,

however, the clinic personnel feel that they should wait

6-9 months or even a year before making a recommendation

for employment.

Identification of Those Employable

As a result of the evidence at the trial, there can be no

real dispute about the fact that substantial numbers of

methadone maintenance patients are capable of successful

employment. The question remains as to how a prospec-

tive employer can identify those who will perform satis-

factorily, and screen out those who are still abusing drugs

or have other undesirable characteristics. There was in-

tensive inquiry on this question at the trial.

My conclusion is that an employer such as the TA can

perform this screening for methadone maintenance patients

in basically the same way as in the case of other prospective

employees.

The TA, like any large employer, has staff and facilities

for ascertaining the mental and physical qualifications of

prospective employees. The TA also has various systems

for monitoring the performance of employees after they

are hired. In cases where particular information must be

obtained, the TA will consult with physicians, psychiatrists,

hospitals, and other sources.

The TA must always make the best determination it can

as to whether the applicant will have proper work habits,

and whether there is a risk of undesirable conduct such

as thievery, drunkenness or narcotic usage. The TA, like

any employer, does not rely on hunch, but obtains objective

evidence—i.e., information about performance at school,

employment history, current employment record, family

ties, medical or psychiatric history, criminal record, and

so forth.

— FS. em see Oe

ME i chen ale ar able) ak ad! 6 en Oe

eee Se

ae es

47a

In this connection, it is important to note that the TA has

no blanket prohibition against the hiring of persons with

criminal records. Individual consideration is given to the

nature of the crime, and to the question of how it might re-

late to the job applied for. For instance, a record of theft

would be considered against a person applying to handle

money. The prior criminal record would be considered in

the context of recent job stability and evidence of rehabilita-

tion.

The TA has no blanket prohibition against the employ-

ment of persons taking drugs such as tranquilizers. When

evidence of such usage appears, the TA believes it should

“dig a little deeper” to find out about the circumstances.

Inquiry may be made with the person’s doctor. Considera-

tion is given on an individual basis.

The TA has no absolute prohibition against the employ-

inent of persons formerly confined to a mental institution

or persons who have been, or are currently being, treated by

a psychiatrists on retainer to act as consultants where prob-

lems such as this arise. But again, the matter of employ-

ability is considered on an individual basis.

The TA does not maintain any blanket rule barring the

hiring of persons with such medical problems as diabetes,

epilepsy or heart disease. Individual consideration is given

to applicants having these conditions. It is the policy of

the TA to consider the hiring of such persons on an indi-

vidual] basis in light of such factors as their actual perform-

ance capabilities and the safety sensitivity of the job to

which they seek appointment.

I return to the matter of objective exidence of emplov-

ability, considered with respect to methadone maintenance

patients. A crucial point here is that the record in this

case demonstrates that there are large numbers of metha-

48a

done maintenance patients who are able to provide to a pros-

pective employer satisfactory objective evidence of employ-

ability. For instance, many methadone maintained persons

can demonstrate that they have been on a reliable metha-

done program for a year or more; that they have faithfully

abided by the rules of the program; that, according to sys-

tematic tests and observations, they have been free of any

illicit drug or aleohol abuse for the entire period of treat-

ment, excluding a possible adjustment period; that they

have the necessary education or other training for the job;

that they have stable family ties; and that they have a cur-

rent successful employment record, and a successful work

history.

In the background, of course, is the record of heroin ad-

diction. Medical Director Lanzetta of the TA takes the

view that when a man goes on heroin there is “some de-

ficiency somewhere”, which presumably persists thereafter,

particularly while the person needs the “erutch” of metha-

done maintenance. Although there is no doubt that heroin

addiction is a problem of the most severe nature, the pre-

sumption that heroin addiction invariably stems from some

character defect, making a person more or less permanently

unemployable, cannot be supported. The question about

whether a person maintained on methadone has some defect

or deficiency making him invariably a risky employee has

been dealt with in detail heretofore in this opinion. The

evidence is conclusively to the contrary.

The question in the individual case is whether the metha-

done maintenance person, despite the history of heroin ad-

diction, is currently capable of employment. If the TA

were being asked to employ a marginal or doubtful case—

i.e., a person who had been in a program only a short time

and who had no work history or current employment record

49a

—the TA might well be justified in giving little or no con-

sideration to such an applicant. But the TA’s blanket ex-

clusionary policy applies with equal strength to the many

methadone maintained persons who, from any rational

standpoint, have objectively demonstrated their capability

of being employed by means of evidence of freedom from

drug abuse and employment record. Moreover, the TA’s

policy applies not only to what are obviously its most

sensitive positions—such as subway motormen, subway

cowermen, bus drivers—but applies to all jobs in the TA,

such as clerks and car cleaners. The TA refuses to consider

‘. methadone maintenance person for employment, regard-

less of the evidence he presents about employability and re-

gardiess of what type of job he seeks at the TA.

[ have referred a number of times to evidence of freedom

from drug or alcohol abuse. The obvious source of such

information is the methadone maintenance program.

In connection with obtaining information from metha-

done maintenance clinics, the TA makes two points: First,

that some of the clinics—particularly the private ones—

may not provide reliable information; and second, that the

clinics may be legally prevented from giving full informa-

tion to an employer regarding a patient. Neither point is

of weight in the present case.

It is true that several of the witnesses indicated that

there might be private clinics which could not be relied

upon for accurate information about drug and alcohol abuse.

Also, one of the witnesses from a “drug free” program ex-

pressed skepticism about the ability of one of the public

programs—the City program—to consistently provide re-

liable information. On the latter point, the current direc-

tor of the City program was thoroughly interrogated in this

case, and the weight of the evidence is that the City pro.

50a

gram is soundly managed and reliable within the bounds of

normal human fallibility. In any event, the TA has never

tried to obtain information from even those clinics such as

Beth Israel which are unanimously agreed to be reliable.

Employers such as Consolidated Edison have found that

they can obtain satisfactory information about methadone

maintenance patients in order to make intelligent employ-

ment judgments. There is no reason to believe that the

TA cannot do the same thing.’

With regard to the legal restrictions imposed upon a

methadone clinic in the giving out of information about pa-

tients, 21 U.S.C. $1175(a) provides that records of the

treatment of any patient in a federally regulated drug abuse

prevention function shall be confidential and shall be dis-

closed only under the circumstances authorized in § 1175(b).

Subsections (b)(1) and (g) provide in effect that such rec-

ords may be disclosed in accordance with the prior written

consent of the patient for such purposes as are allowed in

regulations issued by the Director of the Special Action

Office for Drug Abuse Prevention.

The applicable current regulations were issued June 25,

1975 and became effective on August 1, 1975. 42 C.F.R.

§§ 2.1 et seqg., 40 Fed.Reg. 27802. Section 2.38 governs dis-

closure of information to employers. It is clear that under

these regulations a methadone maintenance patient may

* There was some suggestion at the trial that it might be neces-

sary or advisable to have a certification board or panel of experts

to determine the employability of former addicts. But the weight

of the evidence supports the proposition that an employer such as

the TA can make this determination by its normal screening pro-

cedures. In the case of methadone maintained persons, the em-

ployer would naturally seek information from the program. But

this is essentially no different from obtaining relevant references

for other types of applicants. If the TA has legitimate doubts

about the reliability of the information obtained from the pro-

gram, it will accord such information little or no weight.

-— .

5la

authorize release of information to an employer or prospec-

tive employer which is relevant to questions relating to

employment.

Persons Having Terminated Methadone Maintenance

The great bulk of the evidence in this case related to the

question of the employability of persons engaged in metha-

done maintenance programs. There was some evidence,

although not a great deal, about the characteristics of per-

sons who have successfully completed a methadone main-

tenance program and have withdrawn from methadone.

There are indications that at times these persons will

return to the methadone maintenance programs. At times

such persons revert to heroin. However, it is unquestioned

that there are many methadone maintenance patients who

successfully withdraw from methadone and stay clear of

drug abuse thereafter. Plaintiff Beazer is such a person,

having ceased using methadone almost two years ago.

In any event, it would appear that there would be effec-

tive means for objectively determining the qualifications

tor employment ot a former methadone maintenance pa-

tient. There is no rational reason for maintaining an

absolute bar against the employment of these persons re-

gardless of their individual merits.

Policies of City, State, and Federal Governments

The City of New York, the State of New York and the

Federal Government have taken various steps to eliminate

bars to public employment of methadone maintenance pa-

tients and other former addicts.

On March 22, 1972 the New York City Department of

Personne] issued a policy statement approved by various

City officials and by the City Civil Service Commission.

d2a

The policy statement provided that a history of drug ad-

diction shall not in itself constitute a bar to employment

in any City position, except that appointments to the “uni-

formed services” would continue to be governed by “cur-

rent medical and physical standards.” The policy

statement provided that where an applicant for City em-

ployment has a history of drug addiction, his case will

be considered on its individual merits. The policy state-

ment specifically provided that methadone maintenance

patients should be assisted in obtaining City jobs.

This policy has had no effect on the TA, for reasons

which will be deseribed hereafter.

As to the exception for the “uniformed services,” ap-

parently the police, the firemen, and sanitation workers

are included in this category. However, the evidence in-

dicates that in fact there is no blanket exclusion of metha-

done maintenance patients in these departments at least

as to all positions.

The New York State Civil Service Department and

Drug Abuse Control Commission have promulgated certain

“Operating Principles,” providing that if an applicant for

State employment has a history of drug abuse, the applica-

tion should be considered on its merits, although a history

of drug abuse may be considered the basis for denial of

appointment in “certain sensitive positions” identified by

the Civil Service Department. These Operating Principles

specifically provide for assistance to methadone mainte-

nance patients seeking State employment.

In 1972 Congress passed the Drug Abuse Office and

Treatment Act, which provides in part that “no person

may be denied or deprived of Federal civilian employment

or a Federal professional or other license or right solely

on the ground of prior drug abuse.” The statute goes on

53a

to state that this provision does not apply to employment

in the CIA, the FBI, or other similar agencies. 21 U.S.C.

§$1180(c). Although the statute does not expressly so

state, it would appear that a person successfully participat-

ing in a methadone maintenance program would be within

the protection of the statute.

Mechanics of TA’s Exclusion Policy

Positions in the TA consist of so-called “city-wide titles”

and also titles which are unique to the TA. The city-wide

titles are positions such as secretary, clerk, motor vehicle

operator, which involve basically the same work in the

TA and in City agencies. The TA has 3,400 employees

in city-wide titles.

The New York City Civil Service Commission has

adopted medical standards for city-wide titles in the TA,

and these standards specify that a person who is success-

fully participating in a recognized methadone maintenance

program may be employed. It is conceded that the TA

avoids the effect of this rule by invariably passing over

any methadone patient when applicants for city-wide title

jobs at the TA are chosen from the Civil Service eligibility

lists. The TA has the right under the Civil Service Law

§ 61 to choose any one of the top three applicants on the

list at the time of a particular selection for a job.

With respect to the employment titles at the TA other

than city-wide titles, the TA has its own medical standards

which it has written, although they have been formally

promulgated by the Civil Service Commission. These

standards provide that an applicant may be rejected for a

history of drug abuse, and it is clear that the TA uniformly

rejects all persons with a history of drug abuse who are

participating in methadone maintenance programs.

Position in the TA

The TA contends that it cannot afford to take what it

considers the risks of employing present or past methadone

maintained persons, except possibly those who have been

successfully withdrawn from methadone for several years.

The TA emphasizes that employees such as subway motor-

men have an immediate and heavy responsibility for the

safety of large numbers of persons. The TA argues that

many of its employees must work unsupervised throughout

the wide geographical area covered by the TA system. In-

deed, the TA’s officer in charge of personnel, Wilbur Me-

Laren, testified that “most of our people are literally un-

supervised.” The TA further contends that its jobs are

attended by unusual hazards—such as the risk of a main-

tenance man being hit by a subway in a tunnel.

There can be little doubt about the unique sensitivity in-

volved in jobs such as that of subway motorman. Despite

the existence of various automatic safety devices to pro-

tect against the consequences of mistakes, the subway

motormen and subway towermen (who control certain sub-

way signals) and other similar employees of the TA must

be persons of maximum alertness and competence.

One inevitable question raised by the present case is:

“Do you want a methadone patient driving a subway

train?” One answer to this question is that, under con-

cededly valid rules of the TA, a person cannot become a

subway motorman except by promotion from some other

position in the TA. This means that a methadone maintain-

ed person seeking his first job with the TA could not ap-

ply to be a motorman. No one can be considered for the

position of motorman until he has demonstrated satis-

factory job performance at the TA in some other position

for a period of a year or eighteen months, or more. The

ee

a ee Ee Fe ee ee eS ee

50a

same is true for the position of subway towerman. As to

subway conductors (who control the opening and © »sing of

subway doors), although technically this title is an “entry

level” position, in fact the last two competitions for the po-

sition—in 1972 and 1975—were open only to existing TA

employees seeking promotion. The position of bus driver

is open to new applicants. In any event, as I will describe

later in this opinion, I believe that it would be constitu-

tionally permissible for the TA to refuse to employ present

methadone maintained persons as motormen, conductors,

towermen, bus drivers, and in similar operating positions.

But the essential point here is that the TA’s exclusionary

policy against methadone maintained persons is applied not

merely with respect to the uniquely sensitive jobs such as

motorman and other comparable positions, but is applied

with respect to every category of work within the TA.

It is perfectly clear that large numbers of the employees

in the TA perform work essentially similar to the type

of work done in other businesses and industries where

methadone maintained persons appear to be successfully

employed.

The TA (including MABSTOA) employs approximately

47,000 persons. It hires about 3000 employees annually.

For various purposes, the TA divides its jobs into operat-

ing and non-operating positions. The principal operating

positions, with the numbers of persons involved are:

Subway Motormen 3,300

Subway Conductors 3,200

Subway Towermen 600

Bus Operators 5,200

12,300

56a

However, the TA has almost 400 other job titles, largely

in the non-operating category. The following are a few ex-

amples of non-operating titles, listed with the number of

employees involved:

Accountant 25

Assistant Accountant 29

Architect 5

Assistant Architect 33

Junior Architect 5

Civil Engineer 79

Civil Engineer Draftsman 27

Assistant Civil Engineer 207

Junior Civil Engineer 58

Cashier 32

Clerk 378

Senior Clerk 286

Collecting Agent 145

Bookkeeping Machine Operator 49

Claim Examiner 60

Computer Operator

Keypunch Operator 57

Messenger 12

Railroad Caretaker : 229

Railroad Porter 1162

Railroad Stockman 72

Railroad Stock Assistant. 103

Railroad Watchman 162

Stenographer 44

Senior Stenographer 48

Typist 190

Senior Typist 33

There are other non-operating TA employees, which will be

described in more detail hereafter.

57a

The TA’s contention that most of its employees work

basically without supervision is somewhat belied by the

large number of supervisory positions listed among the ap-

proximately 400 titles of TA employment. For instance,

there at 21 kinds of foremen. There are a total of 1413 fore-

men in these 21 categories. There are 40 categories of em-

ployment at the TA bearing the title “Senior” attached to

type of job—such as Senior Computer Operator, Senior

Engineer. There are 12 types of “Superintendents” and 29

types of “Supervisors.”

Most of the TA non-operating employees are under some

direct supervision, or at least report to a foreman or super-

visor who determines that the employees are fit for duty.

All TA employees (except perhaps at the very high

levels) are on probation for the first six months of their

employment. This applies to both new employees and ones

who have been promoted from another TA job. During pro-

bation there is close scrutiny by a supervisor.

For various purposes the TA considers certain positions

as “critical” or safety-sensitive, and other positions as “non-

critical.” For instance, periodic physical examinations are

given to persons in various critical positions such as sub-

way motormen, subway conductors and bus operators. As

will be discussed in more detail hereafter, the TA treats

an employee with an alcohol problem differently depending

on whether the position is deemed critical or non-critical.

Again, the principal critical categories are motormen, con-

ductors and bus operators, although there are non-operat-

ing jobs, such as operating cranes and handling high volt-

age equipment, which are deemed to be critical. A non-

critical job is defined by chief personnel officer McLaren,

in connection with the alcohol issue, as one where “drinking

would not directly relate to passengers’ safety or overly ex-

58a

pose other employees.” The TA will permit a person having

enough of a drinking problem to require treatment by the

TA’s alcoholic counselling service to remain on non-critical

jobs. Such jobs include all the so-called “City-wide” titles

(3400 persons) ; car cleaners (950 persons) ; and apparently

a majority of the jobs involved in repairing subways and

buses (total 3000 persons), maintaining subway track, struc-

tures and tunnels (total 6800 persons), and manning the sub-

way stations (tota! 5600 persons).

Certain categories of employment bear further discus-

sion. These are: (1) office work; (2) maintenance of sub-

way cars and buses; (3) maintenance cf track, structures

and tunnels; (4) work in subway stations.

(1) Office Work

The total number of office workers is over 2,000. These

include 1200 persons in various clerical and secretarial

titles. Most of the office employees work in the two main

offices of the TA at 370 Jay Street, Brooklyn, and the World

Trade Center in Manhattan. They mainly work a daytime

shift and are under normal office-type supervision.

(2) Maintenance of Subway Cars and Buses

There are about 6,600 employees involved in the mainte-

nance of subway cars and buses.

This category includes 950 car cleaners.‘ About half of

these do the daily sweeping and picking up of the cars. The

* Apparently this category includes both cleaners of subway cars

and cleaners of buses, since there is no separate category of Bus

Cleaner given in the list of employment titles furnished to the

court. However, plaintiff Frasier applied for the position of “Bus

Cleaner” in 1973. It will be assumed that Bus Cleaners perform

essentially the same functions as Car Cleaners.

59a

other half do the washing and other type of cleaning which

occur on certain schedules. The sweeping and picking up

are carried out at the two main subway yards at Coney Is-

land and at 207th Street, and at 13 inspection stations. The

washing and other cleaning work is carried out in the two

main yards.

Most of the car cleaning is done at night. While some car

cleaners work alone, generally they work in groups of two

or more and are supervised by a foreman.

One of the objections of the TA to hiring methadone

maintained persons for car cleaning is that various clean-

ing agents are used which might be toxic under certain cir-

cumstances, and that the effect of these cleaning agents

might be “potentiated” by methadone. Dr. Vincent Lynch

testified to this. However, Dr. Lynch admitted that the ques-

tion of whether there might be some harmful effect de-

pended upon the actual conditions of work at the TA, such

as the concentration of the substances and the amount of

fresh air ventilation. Dr. Lynch stated that he had tried

to find out something about these conditions from the TA,

had been unable to do so, and actually knew nothing about

the conditions. I therefore can give no weight to the claim

about “potentiation” of the effects of cleaning agents.°

° The TA has suggested that the cleaning work at the yards in-

volves substantial danger because cleaners need to walk throughout

the yards and might encounter third rails carrying 600 volts of

electricity. In connection with this case I was taken on a tour of

certain parts of the TA system, which included a visit to the Coney

Island yard at night. We started at the outskirts of the yard, and

crossed seemingly endless numbers of rails and third rails before

we finally aproached some car cleaning operations. From later

testimony, however, it appears that the car cleaners themselves

approach their work far more conveniently. After arriving at the

yard by subway or automobile, they walk via a parking lot and

sidewalk to the foreman’s office in the inspection shop, and then

to the cars to be cleaued, usually crossing two or three tracks at

most.

60a

Another category of positions involves repair and parts

replacement for subway cars. There are 3,000 TA em-

ployees in this category. These employees perform body

work, mechanical and electrical work and painting. They

work mainly in shops in the daytime, and generally in

groups supervised by foremen.

The TA argues that this subway repair work involves

unusual hazards because of the need to manipulate heavy

machinery and power tools. But the uncontradicted evi-

dence is that methadone maintained persons are perform-

ing successfully in comparable industrial jobs.

In any event, plaintiffs are not suggesting that just any-

one on methadone be thrown into working with metal bend-

ers and boring machines. The person must be qualified for

the job. For instance, in the case of Car Maintainer A

(Body Work), he would be required under TA regulations

to have substantial training and experience in such skills

as fabrication of steel assemblies, welding and cutting of

heavy gauge metals, forging, and the use of the necessary

tools and power equipment. If a present or past methadone

maintained person came to the TA and could demonstrate

these qualifications, could demonstrate 4 current satisfac-

tory employment record in this type of work, and could

verify his freedom from illicit drugs for a substantial pe-

riod of time, plaintiffs urge that he deserves to be con-

sidered for a job opening on his merits. The evidence sup-

ports this proposition.

As to repair of buses, there are about 1000 employees en-

gaged in such work, divided about equally between day

and night shifts. The work is mainly done in garages under

the supervision of foremen, and is of a somewhat lighter

nature than what is involved in the repair of subway cars.

However, again there are requirements of extensive train-

ing and experience.

6la

As already indicated, the TA deems many of the jobs con-

nected with the repair and maintenance of subways and

buses as “non-critical,” so that a person with an alcohol

problem may be permitted to continue in his job while re-

habilitation attempts are being made. Car cleaners are con-

sidered non-critical.

(3) Maintenance of Track, Structures and Tunnels

This category of work is referred to by the TA as “main-

tenance of way.” There are about 6800 employees involved.

These employees lay and repair track, work on road beds,

and also do all the other repair and maintenance work for

tunnels, stations and elevated rail structures. They main-

tain the signals and also the equipment for supplying the

power to the subway system. These employees include car-

penters, masons, plumbers, electricians and metal workers.

Also included are the persons who work on drainage pumps

and ventilation fans—the type of work done by plaintiff

Reyes.

Obviously, the work of these employees is spread through-

out the subway system. However, these employees usually

work in groups ranging from two or three to larger groups.

A foreman will supervise a single group, or several small

groups, as appropriate.

Maintenance of Way employees include 1500 trackmen,

who work on the rails, ties, plates, ballast and “subgrade.”

They usually work in gangs of ten men or more under a

foreman.

The TA argues that many Maintenance of Way em-

ployees are subjected to unique hazards involved in work-

ing in tunnels or on elevated structures where trains are

passing, and where the third rail must be constantly

avoided.

62a

However, here again the TA has set high qualifications

for the more sensitive jobs. Positions such as carpenter,

mason, signal maintainer, and power distribution main-

tainer, can only be gained through promotion from helpers

or trainees in those categories. A new employee will enter

as a helper or trainee, and even the latter are required

to have appropriate experience. The helper or trainee will

work under close individual supervision for a year or more.

Again, many of the jobs connected with the maintenance

of subway track, tunnels and structures are deemed “non-

critical,” so that a person with an alcohol problem may be

permitted to keep working during rehabilitation efforts.

(4) Work in Subway Stations

There are about 5,600 employees involved in this cate-

gory. They consist mainly of about 4,100 railroad clerks

who sell the tokens; about 1,100 railroad porters, who

sweep and clean the stations; and about 140 turnstile main-

tainers, who repair the turnstiles,

These employees work largely alone at the various sub-

way stations throughout the system. However, it is clear

that the railroad porter does not occupy a position of

unique sensitivity. The TA points out that the railroad

clerk and the turnstile maintainer are positions requiring

honesty and alertness, and that these employees are some-

times robbed. But the evidence shows that methadone

maintained persons are serving as bank tellers, and as

cashiers in the Off-Track Betting offices. It is not reason-

able to presume that they could never qualify for employ-

ment as railroad clerks or turnstile maintainers.

Railroad clerks, railroad porters and turnstile main-

tainers are deemed to be non-critical employees in the ap-

plication of the policies regarding alcohol.

63a

TA Policy Regarding Alcohol

Some further explanation is necessary regarding the

TA’s policy about alcohol. The TA’s handling of drinking

problems is far more lenient than anything suggested in

this case regarding methadone maintained persons. Plain-

tiffs are seeking in this action consideration for employ-

ment as to persons whose heroin addiction is in the past

and who are, at the time they apply to the TA, demon-

strably free from drug or alcohol abuse.

Although the TA currently refuses to consider such per-

sons for employment, the TA is willing to continue in em-

ployment a substantial number of persons with existing

alcohol problems.

A TA employee is subject to discipline if he is found

drinking on the job or unfit for duty because of drinking

done before he came to work. There was some confusion

among the TA witnesses as to exactly what discipline would

be imposed. But basically, it appears that, at the time of

the first offense, someone in a critical position such as

motorman would be moved to a non-critical position such

as platform conductor; and a person in a non-critical posi-

tion would, upon the first offense, be given a three-day

suspension and then returned to his job. If the TA believes

that the employee has a drinking problem that needs coun-

selling or treatment, he is sent to the TA’s Employee Coun-

selling Service, which exists to deal with problem drinkers.

He may then be requested to attend Alcoholics Anonymous,

or to go to a hospital if necessary. If hospital treatment

occurs, an effort is made to have him return to work as

soon as possible, because the TA feels “that occupational

therapy at the time is a very essential part of their re-

covery,” according to the testimony of Joseph Warren, Di-

rector of the Employee Counselling Service.

64a

There are currently about 2300-2400 TA employees at-

tending the counselling service.

As already indicated, persons having drinking problems

sufficient to require extended counselling and treatment

witk the counselling service are permitted to be employed

in a wide variety of jobs at the TA including office work,

laying of track, cleaning and repair of subway cars, and

so forth.

It is imeresting to note that a person with a drinking

problem may actually be permitted to function in positions

such as subway motorman under certain circumstances. If

a motorman realizes he has an aleohol problem and comes

to the counselling service, or his family reports to the

counselling service, he will undertake counselling and treat-

ment on a confidential basis, according to Mr. Warren.

This is treated as “highly classified information.” The

man’s supervisor is not apprised, nor apparently is the

man taken off the job, until and unless the supervisor de-

tects some failure of performance.

Conclusions of Law

Applicable Law

There is no basic dispute among the parties as to the

constitutional doctrines which apply to the present case.

A public entity such as the TA cannot bar persons from

employment on the basis of criteria which have no rational

relation to the demands of the jobs to be performed. To

do so is a violation of both the due process and equal pro-

tection clauses of the Fourteenth Amendment. This applies

to new applicants for employment, and to existing em-

ployees threatened with termination.

Decisions dealing with the basic doctrines are Cleveland

Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791,

65a

39 L.Ed.2d 52 (1974); Sugarman v. Dougall, 413 U.S. 634,

93 S.Ct. 2842, 37 L.Ed.2d 853 (1973); Schware v. Board of

Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796

(1957); Baker v. Columbus Municipal Separate School

District, 329 F.Supp. 706 (N.D. Miss. 1971), aff'd, 462 F.2d

1112 (5th Cir. 1972).

In the LaFleur case the Court held invalid under the due

process clause certain rules requiring teachers to take ex-

tended leaves of absence beginning with the fourth or fifth

month of pregnancy. Justice Stewart, writing for the ma-

jority, held that such rules have the effect of creating irre-

buttable presumptions of physical inadequacy, and that the

constitution requires more individualized determination.

Justice Powell concurred in the result, although he dis-

agreed with the irrebuttable presumption theory. Justice

Powell would permit certain classifications or rules relat-

ing to pregnant teachers, provided they were narrower and

rationally related to a legitimate employment purpose.

Sugarman vy. Dougall, supra, held unconstitutional, as

violating the equal protection clause, a provision in the

New York Civil Service Law that no person would be

eligible for state employment in the “competitive class” if

not a United States citizen. Justice Blackmun, writing for

the majority, made it clear that the state might, “on the

basis of an individualized determination,” validly refuse

public employment because of noncitizenship in certain

types of positions where this factor bore some rational

relationship to the demands of the position. However, “a

flat ban” on the employment of aliens could not withstand

scrutiny under the Fourteenth Amendment.

The Supreme Court’s decision in LaFleur, swpra, was

anticipated by the Second Cireuit decision in Green v.

Waterford Board of Education, 473 F.2d 629 (2d Cir.

66a

1973). In this case emphasis was laid upon the fact that a

pregnant teacher was treated differently from persons

having other forms of disability. The court stated (473

F.2d at 634-5) :

“Why the Board should choose, by means of an inflex-

ible rule, to manifest particular concern with the health

of a pregnant woman, but not, for example, with the

health of a teacher (male or female) recuperating from

a heart attack is nowhere explained.”

Application to the Present Case

Under the above authorities, I hold that the TA’s

blanket ban against the employment of all present and

past methadone maintained persons in any position in the

TA is a violation of the due process and equal protection

clauses of the Fourteenth Amendment.

It is perfectly clear that there are substantial numbers

of present or past methadone maintained persons who

would be capable of performing many of the jobs at the

TA. Individual consideration, or narrower rules rationally

related to certain classifications of jobs, are constitution-

ally required.

The lack of a reasonable basis for the present policy of

the TA is particularly evident from the markedly different

treatment given to problem drinkers—persons presenting

greater risks than those members of the plaintiff class for

whom employment is sought. See Green v. Waterford

Board of Education, supra.

I recognize that there are differences of opinion as to

the merits of methadone maintenance as a treatment for

heroin addiction. For one thing, there is a conscientious

body of opinion strongly objecting on philosophical grounds

67a

to the long-term use of one drug to combat the effects of

another drug. However, as plaintiffs’ experts point out,

one might also challenge on philosophical or moral grounds

the use of alcoholic and the use of other “licit” drugs by

large segments of the population. Obviously, the constitu-

tional rights of methadone maintained persons cannot be

decided on the basis of these considerations.

I wish to stress certain things not compelled by my

holding. The TA is not required to hire any present or

past methadone maintained person where there is a legiti-

mate reason to question the person’s ability or competence

—including a legitimate reason to believe that the person

is abusing illicit drugs or aleohol. The TA is not required

to rely on references from methadone clinics or programs

where there is reason to doubt the reliav.lity of such in-

formation. The TA is not prevented from making reason-

able rules and regulations about methadone maintained

persons—such as requiring satisfactory performance in a

program for a period of time such as a year, or forbidding

methadone maintained persons employment in sensitive

categories such as that of subway motorman, subway con-

ductor, subway towerman, bus driver, and jobs dealing

with high voltage equipment. As in Sugarman v. Dougall,

413 U.S. 634, 93 S.Ct. 2842, 37 L.Ed.2d 853 (1973), the

problem is the TA’s flat ban, which goes beyond any ra-

tional or legitimate needs of the TA, and excludes persons

just as qualified for employment as many who are hired

by the TA.

One other question to be dealt with at this point re-

lates to the suggestion at the trial that there may be meth-

adone maintained persons who are working for various

employers, including the TA, where the employers are ta-

aware of that fact. Surely there is nothing which consti-

68a

tutionally prevents the TA from inquiring of its employees,

or applicants for employment, whether they are or were on

methadone maintenance programs. Upon such inquiry, the

employees or applicants would be obligated to disclose the

fact.

Returning to the main issue, I hold that plaintiffs and

their class are entitled to relief under the Fourteenth

Amendment and under 42 U.S.C. $1983.

The § 1981 and Title VII Claims

Since I have decided that relief is warranted as de-

scribed above, I need not reach the claims of racial dis-

crimination uader 42 U.S.C. § 1981 and Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

The “City” Defendants

Although plaintiffs have shown a right to relief in this

case against the TA, MABSTOA, and their officials who

have been sued, there is no showing of any wrongdoing or

any need for relief as against the New York City Civil

Service Commission or the New York City Personnel De-

partment, or any officials connected with these two entities.

Relief to be Granted

In connection with the relief to be granted, there are two

subjects to be covered: First, the relief for the named

pizintiffs; second, the relief for the class.

Witii respect to the named plaintiffs, the basic error

committed by the TA was determining these persons’ status

on the basis of the TA’s blanket exclusion of present and

past methadone maintained persons. The TA will be di-

rected to re-examine the employability of each of the four

69a

named plaintiffs without regard to this invalid policy. The

TA will then submit its conclusions to the court. The court

will then finally determine whether any of the named plain-

tiffs should be reinstated or hired, and what rights to back

pay there are, if any.

With respect to the class, plaintiffs are directed to sub-

mit a proposed permanent injunction based upon the prin-

ciples announced in this opinion, and the TA defendants

are to review and comment upon plaintiffs’ proposal.

I have in mind that the injunction cannot provide for the

detailed handling of all situations which might arise. Obvi-

ously, no one knows at the present juncture exactly who

will apply for what job. The injunction should contain cer-

tain basic directions and guidelines. Thereafter the court

will retain jurisdiction for a period of time to implement

the injunction.

70a

APPENDIX D

Opinion and Judgment of the District Court of the

Southern District of New York, Entered May 5, 1975

>

Cart A. Beazer, et al.,

Plaintiffs,

—V.—

New York City Transit Auruonriry, et al.,

Defendants.

>>

No. 72 Civ. 5307.

UNITED STATES DISTRICT COURT, S. D. NEW YORK

May 5, 1976.

Legal Action Center of the City of New York, Inc., New

York City, Elizabeth B. DuBois, Eric D. Balber, Mark C.

Morril, Michael Meltsner, New York City, for plaintiffs.

Stuart Riedel, Gen. Counsel, New York City Transit Au-

thority, by E. W. Summers, G. T. Dunn, L. Smejda, Brook-

lyn, N. Y., for defendants.

SUPPLEMENTAL OPINION

Griesa, District Judge.

On August 6, 1975 I filed a decision holding that the New

York City Transit Authority and the Manhattan and Bronx

Surface Transit Operating Authority (hereafter collectively

referred to as “the TA”) are committing violations of the

Tla

due process and equal protection clauses of the Fourteenth

Amendment, and also violations of 42 U.S.C. ¢ 1983, in

their blanket refusal to employ any former heroin addicts

participating in, or having completed, methadone mainte-

nance programs, regardless of individual merits.

In that decision, I noted the allegation of plaintiffs that

the exclusionary policy has a disparate impact on blacks

and Hispanics, resulting in violation of 42 U.S.C. § 1981

and Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. § 2000e et seq. However, I deemed it unnecessary

to reach this racial discrimination claim.

Plaintiffs have received their application for relief under

Title VII. Admittedly, the sole purpose of this application

is to obtain the benefit of the provision in Title VII author-

izing the award of a reasonable attorney’s fee to the pre-

vailing party. 42 U.S.C. § 2000e-5(k). In the absence of

such express statutory authority the award of fees in the

present case could not be made. Alyeska Pipeline Service

Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44

L.Ed.2d 141 (1975).

It is clear that the question of the attorney’s fee deals

with a substantial right, and plaintiffs are entitled to an ad-

judication of their Title VII claim. I hold that the proof

establishes a valid cause of action under Title VII, and that

plaintiff’s attorneys are entitled to the award of a reason-

able fee, to be assessed.

The relevant provisions in Title VII prohibiting ra-

cial discrimination in employment are contained in 42 U.S.C.

2000e-2(a), which provides:

“(a) It shall be an unlawful employment practice for

an employer—

(1) to fail or refuse to hire or to discharge any in-

dividual, or otherwise to discriminate against any indi-

72a

vidual with respect to his compensation, terms, condi-

tions, or privileges of employment, because of such

individual’s race, color, religion, sex, or national origin;

or

(2) to limit, segregate, or classify his employees or

applicants for employment in any way which would de-

prive or tend to deprive any individual of employment

opportunities or otherwise adversely affect his status

as an employee, because of such individual’s race, color,

religion, sex, or national origin.”

The cases hold that Title VII does not require proof of a

purpose or intent to carry out racial discrimination. Griggs

v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d

158 (1971). It is sufficient to prove that an employer has

adopted a test or criterion for employment which in fact

operates in a racially discriminatory manner against

minority races, where that criterion is not shown to be re-

lated to job performance. Jd. at 431. See United States v.

Bethlehem Steel Corp., 446 F.2d 652, 662 (2d Cir. 1971).

I have already held in my earlier opinion that the blanket

exclusionary policy of the TA against present and former

methadone maintenance patients is not rationally related to

any employment or business needs of the TA. This leaves

for determination, under the Title VII claim, the question

of whether the policy of the TA has a racially discrimina-

tory effect against blacks and Hispanics.

The four named plaintiffs are members of minority races

or national groups. Two are blacks and two are Hispanics.

Of the TA employees referred to the TA’s medical con-

sultant for suspected violation of its drug policy since July

en 81% were black and Hispanics and only 19% were

white.

73a

Plaintiffs place their greatest reliance on the argument

that, although the policy of the TA is racially neutral on its

face (dealing solely with problems of drug addiction and

treatment), the impact of the policy will tend inevitably to

exclude more blacks and Hispanics from TA employment,

because of the admitted fact that the class of present and

former methadone maintained persons includes substan-

tially more blacks and Hispanics than whites.

Between 62% and 65% of methadone maintained per-

sons in New York City are black and Hispanic, meaning

that there are almost twice as many blacks and Hispanics

as there are whites in this category. Thus the policy of

the TA, while not adopted with a purpose of racial dis-

crimination, has been shown to have a substantially greater

impact on minority groups than on whites. Since the policy

is not grounded in any business necessity, it violates Title

VIL. Griggs v. Duke Power Co., 401 U.S. at 430 n.6, 91 S.Ct.

849: Green v. Missouri Pacific R.R., 523 F.2d 1290, 1293-95

(Sth Cir. 1975); United States v. Georgia Power Co., 474

F.2d 906, 918 (5th Cir. 1973); Gregory v. Litton Sys., 316

F.Supp. 401, 403 (C.D.Cal. 1970), aff'd, 472 F.2d 631 (9th

Cir. 1972). The fact that other policies of the TA ap-

parently have resulted in a liberal amount of employment

for minorities by the TA is not a defense with respect to the

exclusionary policy under scrutiny in this case. Davis v.

Washington, 168 U.S.App.D.C. 42, 512 F.2d 956, 960-61 and

n.31 (1975), cert. granted, 423 U.S. 820, 96 S.Ct. 33, 46 L.Ed.

2d 37 (1975), United States v. Jacksonville Terminal Co.,

451 F.2d 418, 443 (5th Cir. 1971) cert. denied, 406 U.S. 906,

92 S.Ct. 1607, 31 L.Ed.2d 815 (1972).

In a Title VII case, attorney’s fees are normally

awarded to the prevailing party, unless there are excep-

tional circumstances indicating that such an award should

74a

not be made. No such circumstances exist in the present

case. Plaintiffs are clearly entitled to a fee award. Lea v.

Cone Mills Corp., 438 F.2d 86, 88 (4th Cir. 1971); Parham

v. Southwestern Bell Telephone Co., 433 F.2d 421 (8th Cir.

1970). See Alyeska Pipeline Service Co. v. Wilderness

Soc’y, 421 U.S. 240, 261-62, 95 S.Ct. 1612, 44 L.Ed.2d 141

(1975) ; Alexander v. Gardner Denver Co., 415 U.S. 36, 47,

94 S.Ct. 1011, 39 L.Ed.2d 147 (1974); Northcross v. Board

of Educ., 412 U.S. 427, 93 S.Ct. 2201, 37 L.Ed.2d 48 (1973) ;

Newman v. Piggie Park Enterprises, 390 U.S. 400, 402, 88

S.Ct. 964, 19 L.Ed.2d 1263 (1968); Fort v. White, 530 F.2d

1113 (2d Cir. 1976).

A hearing will be held on the amount of the award.

So ordered.

75a

APPENDIX E

Amended Permanent Injunction and Judgment of the

District Court of the Southern District of New York,

Entered January 24, 1977

72 Civ. 5307 (T.P.G.)

i

Cart A. Beazer, et al.,

Plaintiffs,

—against—

New York Crry Transit Avutuorirty, et al.,

Defendants.

— —

AMENDED PERMANENT INJUNCTION AND JUDGMENT

WHEREAS,

(1) on May 20, 1976, this Court entered a Permanent In-

junction and Judgment against defendants New York City

Transit Authority, Manhattan and Bronx Surface Transit

Operating Authority, and certain related defendants (here-

inafter referred to as the “TA”), paragraphs 4 and 5 of

which Order contemplated further action by this Court;

and

(2) on September 24, 1976, plaintiffs moved this Court

for an order modifying the May 20, 1976 Order; and

(3) on May 5, 1976, this Court declared that plaintiffs

were entitled to the award of a reasonable attorneys’ fee

pursuant to Title VII of the 1964 Civil Rights Act: and

76a

(4) on October 29, 1976, plaintiffs moved this Court for

an order declaring defendants’ liability for attorneys’ fees

pursuant to the Civil Rights Attorneys’ Fee Award Act of

1976 and fixing the amount of fees;

AccorDINGLY, this Court having considered all papers and

proceedings had herein relating to the above mentioned

motions and having held hearings on January 11, 13 and 21,

1977 to consider these matters and having made findings

on the record at these hearings, that

(1) plaintiffs Francisco Diaz and Maleolm K. Frasier are

entitled to individual relief; and

(2) plaintiffs Carl A. Beazer and Jose Reyes and class

member Nathaniel Wright are not entitled to relief; and

(3) plaintiffs are entitled to the award of a reasonable

attorneys’ fee.

It Is HEREBY ORDERED that the decretal provisions of the

Permanent Injunction and Judgment, as amended, shall

read as follows:

1. Except as specified in Paragraphs 2 and 3, the TA,

its members, directors, officers, agents and employees, are

permanently enjoined and restrained from denying employ-

ment to, or dismissing from employment, any person solely

because of present or past participation in methadone main-

tenance treatment.

2. Except as specified in Paragraph 3, the employability

of present or past methadone maintained persons (in all

phases of the employment process, including new applica-

tions, promotions, transfers, disciplinary proceedings and

dismissals) shall be considered by the TA according to ap-

77a

propriate personnel procedures to determine the suitability

of the individual for the particular job. In the case of a

present or past methadone maintained person, the TA is

entitled to take in consideration all relevant factors about

the person’s drug history, and the quality and reliability of

any methadone maintenance program having treated the

person, in determining the person’s suitability for the job.

3. This injunction does not prevent the TA from using

appropriate standards regarding the employability of pres-

ent or past methadone maintained persons, such as:

(a) A requirement of satisfactory performance in a

methadone maintenance program for a specified period,

such as a year, as a condition for employment;

(b) A res

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Petition — New York City Transit Authority v. Beazer · 440 U.S. 568 | Frix