This action arises out of a drug test administered to plaintiff Darryl Jacobs ("Jacobs") by his union Local 456 of the International Brotherhood of Teamsters ("Teamsters") and the resulting decision of plaintiff's employer the Village of Tuckahoe ("Tuckahoe") to fire plaintiff from his job.

Plaintiff's Complaint alleges that defendants infringed plaintiff's Fourth Amendment right against unreasonable searches and seizures under color of state law in violation of 42 U.S.C. SEC.. 1983 and pendent state laws. Defendants now move for summary judgment pursuant to Fed. R. Civ. P. 56(b) asserting that plaintiff's claims are time-barred. For the reasons set below defendants' motion for summary judgment is GRANTED.

BACKGROUND

Jacobs a member of defendant Teamsters worked as a laborer for the Tuckahoe highway department pursuant to a collective bargaining agreement between the Teamsters and Tuckahoe. Defendant Anthony S. Cacciola ("Cacciola") worked for the Village of Tuckahoe and was Jacobs' direct supervisor. In May 1991 after Jacobs had logged a substantial number of absences Jacobs was asked by Teamster defendants George Graff and Raymond Stahl at the behest of Cacciola to submit to a drug test or face suspension or termination. Jacobs complied and was tested on May 15 1991 after signing a waiver indicating that if he tested positive he would be subject to termination. *fn1

Several weeks later the drug test returned a positive result and on July 5, 1991 Jacobs was presented with the choice of entering an inpatient treatment program or being fired. Jacobs refused to accept inpatient treatment and was terminated the same day.

Plaintiff commenced this action on July 5, 1994 exactly three years after the date of his termination. The Complaint states that the drug test of May 15, 1991 and the request of July 5, 1991 that plaintiff submit to drug treatment violated his Fourth Amendment rights under SEC. 1983. Defendants respond that the claims are time-barred under SEC. 1983's three-year statute of limitations.

DISCUSSION

Fed. R. Civ. P. 56(c) provides that summary judgment is appropriate when:

the pleadings depositions answers to interrogatories and admissions on file together with affidavits if any show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

A genuine issue of material fact exists where "the evidence is such that 'a reasonable jury could return a verdict for the nonmoving party.'" Iacobelli Constr. Inc. v. County of Monroe 32 F.3d 19 23 (2d Cir. 1994) (quoting Anderson v. Liberty Lobby Inc. 477 U.S. 242 248 91 L. Ed. 2d 202 106 S. Ct. 2505 (1986)). Establishing the "'mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.'" Rexnord Holdings Inc. v. Bidermann 21 F.3d 522 525 (2d Cir. 1994) (quoting Liberty Lobby 477 U.S. at 247-48). However in determining whether a genuine issue of material fact exists all ambiguities must be resolved and all inferences drawn in favor the nonmoving party. Iacobelli 32 F.3d at 23.

It is well established that the statute of limitations governing SEC. 1983 claims arising in New York is three years. See Owens v. Okure 488 U.S. 235 250-51 102 L. Ed. 2d 594 109 S. Ct. 573 (1989); Pinaud v. County of Suffolk 52 F.3d 1139 1156 (2d Cir. 1995). Although the statute of limitations period is governed by state law the date upon which a claim accrue's under federal civil rights law is governed by federal law. Singleton v. City of New York 632 F.2d 185 191 (2d Cir. 1980) cert. denied 450 U.S. 920 67 L. Ed. 2d 347 101 S. Ct. 1368 (1981). The federal standard is that a claim accrues "when the alleged conduct has caused the claimant harm and the claimant knows or has reason to know of the allegedly impermissible conduct and the resulting harm." Id.

Defendants contend that if plaintiff was harmed his harm necessarily stemmed from the drug test since all subsequent actions flowed naturally from that event. Defendants thus argue correctly in my view that plaintiff's cause of action accrued on May 15 1991 the date the test was administered and expired on May 15 1994 seven weeks before plaintiff filed this lawsuit.

Plaintiff concedes that the drug test itself falls outside the three-year limitations period but contends that the harm to him did not accrue until the date of his termination. He reasons that because he could not have "known" of the "resulting harm " in the language of Singleton until he received a final notice of discharge his injury did not accrue until July 5, 1991. In the alternative plaintiff argues that the request of July 5, 1991 that he submit to inpatient treatment constituted an independent Fourth Amendment harm which accrued within the limitations period. *fn2 Neither of these arguments saves plaintiff's claims.

Plaintiff's first argument requires me to determine when his constitutional injury if any accrued. A SEC. 1983 injury involves the deprivation of a constitutional right under color of law. When the claim is based on an illegal search and seizure "the victim is harmed by the invasion of his zone of privacy." Day v. Morgenthau 909 F.2d 75 77 (2d Cir. 1990) (quoting Lee v. Willins 617 F.2d 320 322 (2d Cir. 1980)). In other words the harm necessarily occurs when the invasion occurs. As stated in Singleton a claim asserted under Sec. 1983 accrues when the plaintiff "knows or has reason to know of the allegedly impermissible conduct and the resulting harm." Singleton 632 F.2d at 191. The harm referred to here is the constitutional harm the invasion of plaintiff's privacy. Plaintiff errs by confusing the alleged constitutional harm the administration of the drug test with the resulting economic harm to him: his termination. Job termination is not the harm actionable under sec. 1983 because it did not deprive plaintiff of a constitutional right. The invasion of plaintiff's privacy constituted the harm at issue. Therefore the date of plaintiff's discharge is immaterial for tolling purposes. The fact that plaintiff was terminated would be relevant only to the calculation of damages.

Plaintiff's reliance on Smith v. UPS 65 F.3d 266 (2d Cir. 1995) is misplaced. Smith involved a wrongful termination claim asserted under the Americans with Disabilities Act (ADA) in which the Second Circuit held that an ADA claim accrues at the moment of employment termination. In the instant case however plaintiff has not asserted a claim under the ADA and he cannot adopt its rules of accrual. Assuming for the sake of argument that the drug test constituted an impermissible invasion an issue I need not address on the merits Jacobs' injury could only have accrued when the drug test was administered on May 15 1991 and his claim is therefore barred by the statute of limitations.

Plaintiff argues alternatively that the request on July 5 1991 to submit to medical treatment constituted an unlawful seizure of his person--or at least a threat of seizure--and thus constituted an independent injury under the Fourth Amendment. Pl.'s Mem. of Law in Opp. to Defs.' Mot. for Sum. J. at 7. In essence plaintiff contends that the choice between lengthy "incarceration" in a hospital and job termination was no choice at all. Plaintiff cites no case law for this novel proposition; nor does he persuade me that the alleged threat of personal seizure rises to the level of a harm actionable under sec. 1983. As the Supreme Court has stated "A person has been 'seized' within the meaning of the Fourth Amendment only if in view of all the circumstances surrounding the incident a reasonable person would have believed that he was not free to leave." United States v. Mendenhall 446 U.S. 544 554 64 L. Ed. 2d 497 100 S. Ct. 1870 (1980). In this case plaintiff clearly felt free to leave because he did so. He refused to enter the hospital and accepted the certain consequence of being fired. Cf. Kernats v. O'Sullivan 35 F.3d 1171 (7th Cir. 1994) (police threat to evict tenants if tenants refused to vacate premises did not constitute 'seizure' actionable under Sec. 1983). The fact that both the drug test and the treatment ultimatum were necessary conditions for plaintiff's termination does not mean that the ultimatum alone constituted a Fourth Amendment seizure. At best the drug test and the treatment ultimatum constituted one extended harm. In that case however the harm accrued on May 15 1991 when the drug test was administered and plaintiff's claim falls outside the statute of limitations.

Having concluded that plaintiff's federal claim must be dismissed as time-barred I decline to exercise supplemental jurisdiction and also dismiss plaintiff's pendent state law claims. 28 U.S.C. SEC. 1367 (c) (3); United Mine Workers v. Gibbs 383 U.S. 715 726 16 L. Ed. 2d 218 86 S. Ct. 1130 (1966).

CONCLUSION

For the reasons set forth above the Complaint is dismissed in its entirety. The Clerk is directed to enter judgment accordingly.

SO ORDERED.

SONIA SOTOMAYOR U.S.D.J.