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.
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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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