The plaintiff Michael Nocera ("Nocera") brings this action against the defendants Carlos Rivera New York City Fire Commissioner; Anthony Fusco Chief of the New York City Fire Department; Richard Saccamano; and the New York City Fire Department ("Rivera " "Fusco " "Saccamano " and the "Department" or collectively as "defendants") alleging violations of his rights under 42 U.S.C. SEC. 1983 and the Fourth and Fourteenth Amendments to the United States Constitution while employed as a probationary fire fighter by the New York City Fire Department. The plaintiff alleges that the defendants violated his constitutional rights by requiring a urinalysis drug test and thereafter by discharging him after a positive test result. The defendants argue among other things that they had a reasonable basis for requiring the test in the plaintiff's case and that the individual defendants are protected by qualified immunity.

In his complaint the plaintiff asserted three claims for relief. The first claim alleged that the drug test violated the plaintiff's Fourth and Fourteenth Amendment rights. The second claim alleged a violation of the plaintiff's property interest under the Fourteenth Amendment because of the defendants' alleged refusal to afford the plaintiff the right to retest the results of the drug test on which his termination was allegedly based. The third claim for relief also asserted under the Fourteenth Amendment alleged that the plaintiff's liberty interest was violated because of the stigmatizing information contained in the Department files as to which the plaintiff was allegedly afforded no opportunity to be heard. The parties have stipulated that the plaintiff's second claim alleging that he was deprived of a property interest is withdrawn. The defendants move for summary judgment dismissing the remaining two claims. The plaintiff seeks summary judgment finding that the allegedly compulsory urinalysis drug test violated his Fourth and Fourteenth Amendment rights because the Fire Department did not have a sufficient basis to require the test. *fn1

I.

Summary judgment may not be granted unless "the pleadings depositions answers to interrogatories and admissions on file together with the affidavits if any show that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett 477 U.S. 317 91 L. Ed. 2d 265 106 S. Ct. 2548 (1986); Gallo v. Prudential Residential Servs. Ltd. Partnership 22 F.3d 1219 1223 (2d Cir. 1994). "The trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried not to deciding them. Its duty in short is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo 22 F.3d at 1224.

The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex 477 U.S. at 323. The substantive law governing the case will identify those facts which are material and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby Inc. 477 U.S. 242 248 91 L. Ed. 2d 202 106 S. Ct. 2505 (1986). In determining whether summary judgment is appropriate a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp. 475 U.S. 574 587 89 L. Ed. 2d 538 106 S. Ct. 1348 (1986) (citing United States v. Diebold Inc. 369 U.S. 654 655 8 L. Ed. 2d 176 82 S. Ct.993 (1962)); see also Gallo 22 F.3d at 1223.

If the moving party meets its burden the burden shifts to the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). With respect to the issues on which summary judgment is sought if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party summary judgment is improper. See Chambers v. TRM Copy Centers Corp. 43 F.3d 29 37 (2d Cir. 1994).

When as in this case both parties seek summary judgment Court must "'evaluate each party's motion on its own merits taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration.'" Abrams v. United States 797 F.2d 100 103 (2d Cir. 1986) (quoting Schwabenbauer v. Board of Educ. 667 F.2d 305 314 (2d Cir. 1981). Only where one of the parties is entitled to judgment as a matter of law upon material facts not genuinely in dispute is Court warranted in granting summary judgment.

II.

There is no genuine dispute with respect to the following facts established in the record.

The plaintiff Michael Nocera ("Nocera") was appointed a probationary fire fighter with the New York City Fire Department ("Fire Department" or "Department") on May 9 1993.

As a condition to his appointment as a probationary fire fighter the plaintiff underwent a full medical examination on July 24 1991. Since over one year had elapsed the plaintiff was scheduled for another full medical examination on September 16 1992 as a condition to appointment; he canceled his appointment for the examination. (Defs.' Ex. 3.) *fn2 The plaintiff canceled additional appointments on September 21 1992 and November 19 1992. On or about February 5 1993 the plaintiff was informed by the Department that he could no longer postpone his medical examination and that he would have to appear on February 18 1993. (Defs.' Ex. 3; Pl.'s Dep. Tr. dated September 23 1994 at 60 annexed as Defs.' Ex. 5.) On February 18 1993 the plaintiff finally appeared for his pre appointment medical exam and was medically qualified for appointment to the position of probationary fire fighter. (Defs.' Ex. 3.)

The plaintiff who was then 27 years old was appointed as a probationary fire fighter on May 9 1993. (Def. Ex. 7.) Upon his appointment the plaintiff was assigned to the Fire Department Division of Training ("Training Academy"). (Id.) While assigned to the Training Academy the plaintiff participated in probationary orientation. On their first day at the Training Academy all probationers are given a five-page document entitled "Orientation for Probies" ("handout"). (Defs.' Ex. 8; Dep. Tr. of Richard Saccomano dated June 23 1994 annexed as Defs.' Ex. 9 at 3-4.) The instructors at the Academy go through this document line by line with the probationers. (Id.) This handout explicitly states: "Any notices received which might be of interest to the Fire Department must be delivered to the P.F.S. [Probationary Fire fighter School] office as soon as possible. Such notices might include but are not limited to: military orders subpoenas jury notice court appearances." (Defs.' Ex. 8 at 4.) The handout also states: "Trainees are responsible for compliance with the Rules and Regulations for the Uniformed Force of the Fire Department and all amendments and revisions that are promulgated." (Id. at 5.)

Rule 25.4.2 of the Rules and Regulations for the Uniformed Force of the Fire Department ("Rules and Regulations") provides that:

Members shall not engage in an altercation commit assault or violate any law. When members are arrested or issued a desk appearance ticket they shall without delay notify the officer on duty of their assigned unit. Such notification shall include the nature of the charges date time and location of occurrence.

(Defs.' Ex. 10 (emphasis added).)

Rule 25.1.6 of the Rules and Regulations provides that "members shall not at any time indulge in or be under the influence of marijuana or any controlled substance prohibited by the New York State Penal Law. " (Defs.' Ex. 11.)

On Friday May 21 1993 nine business days after his probationary appointment the plaintiff reported sick and did not report to the Training Academy. (Defs.' Ex. 13.) The plaintiff again reported sick on Friday June 18 1993 and did not report to the Training Academy. (Def. Ex. 14.) On Tuesday June 22 1993 the plaintiff was continued on Medical Leave with an expected return to full duty assignment at the Training Academy on Friday June 25 1993. (Defs.' Ex. 15.)

On Friday June 11 1993 the plaintiff was arrested for criminal trespass in the third degree and acknowledged receipt of a Desk Appearance Ticket which stated that criminal charges were pending against him. (Defs.' Ex. 15 16 18.) The plaintiff did not then report his arrest to the Fire Department although he was required to do so pursuant to instructions given in training and pursuant to Rule 25.4.2 of the Rules and Regulations. (Defs.' Ex. 5 at 130; Defs.' Ex. 10.)

On or about Tuesday June 29 1993 the State of New York Division of Criminal Justice Services notified the Fire Department of the plaintiff's arrest. (Defs.' Ex. 16 20.) The plaintiff's arrest report was forwarded to the Division of Trials and Investigations of the Fire Department on June 29 1993. (Defs.' Ex. 16 17.) The arrest report received by the Fire Department states that on Friday June 11 1993 at 1850 hours the plaintiff was observed in the lobby of 30 Avenue V a building in the Marlboro Projects and was arrested for criminal trespass in the third degree. (Id.) The arrest report further states that the lobby where the plaintiff was observed is a "known drug location " that the plaintiff did not live in the building that the plaintiff had no valid reason for being there and that "No trespass" signs were visibly posted. (Id.)

On Tuesday June 29 1993 the defendant Richard Saccomano Battalion Chief of the Probationary School was informed by Margie Prather of the Fire Department's Candidate Investigation Unit ("CIU") that the plaintiff was arrested on June 11 1993 and he had failed to report his arrest. (Defs.' Ex. 21.) Defendant Saccomano was instructed to obtain a statement from the plaintiff concerning his arrest. (Defs.' Ex. 9 at 11.) By a written statement made in the presence of defendant Saccomano and Lieutenant James A. Owens on June 29 1993 the plaintiff stated:

I was in a area where the Police were under surveillance. My girlfriend lives in this area. When the Officers approached me I became arrogant to think they were approaching me. My arrogance led them to arrest me for trespassing. The Officer told the Desk Sergeant that I had no occupation and to just appear July 6 1993 to Night Court. I asked if I should Report this to my Superior's [sic] and the Officer said not to volunteer this information and to just pay

the Summons.

(Defs.' Ex. 22.)

On June 29 1993 the Assistant Commissioner of the Bureau of Investigations and Trials of the Fire Department prepared a report regarding the plaintiff's June 11 1993 arrest and his failure to report the arrest. (Defs.' Ex. 16.) When he received a copy of the report Fusco then chief of the Fire Department consulted with the First Deputy Commissioner and Chief of Operations. (Dep. Tr. of Anthony Fusco dated June 23 1993 annexed as Defs.' Ex. 23 at 7-9; Aff. Of Anthony Fusco sworn to on June 8 1995 ("Fusco Aff.") PP 4 13.) Based upon his experience of over thirty years with the Fire Department and his consultation with the Deputy Commissioner and the Chief of Operations Fusco suspected illegal drug use by the plaintiff and determined that the plaintiff should undergo a urinalysis to test for the presence of drugs. (Defs.' Ex. 23 at 17 25-26 28; Fusco Aff. PP 11-17.)

The determination to have the plaintiff submit to a drug test was based upon a combination of factors including the plaintiff's arrest for trespassing in a known drug location and his failure to report it together with the plaintiff's three absences during his six weeks of probationary service and the fact that the plaintiff had missed several medical tests prior to being medically qualified for appointment. (Id.) On July 1 1993 less than two full business days after being notified of the plaintiff's arrest and his failure to report his arrest defendant Saccomano was directed by Chief Bauer the Executive Officer at the Bureau of Training to have the plaintiff report to the Fire Department Bureau of Health Services. (Defs.' Ex. 9 at 27-28.)

The Fire Department All Unit Circular No. 202A regarding "Department Policy Regarding Drugs and Narcotics" provides:

(1) members shall not use or have in their possession narcotics tranquilizers opiates cocaine marijuana hallucinogens methadone amphetamines or barbiturates or other controlled substances or paraphernalia used to administer any of the above except with the approval of the Chief Medical Officer. . . .

(3) members shall not report for or be on duty in a drug induced state or while under the influence of a drug which alters alertness judgment personality responses or physical agility. Members will be presumed to be "under the influence" if such a drug is found in their systems.

(4) The same procedure utilized when a member is suspected to be under the influence of alcohol shall be implemented in instances where illegal and/or unauthorized drug use is suspected. When reasonable grounds exist for believing members are using or have used illegal and/or unauthorized drugs they shall be required to undergo blood or other related tests.

(Defs.' Ex. 24 (emphasis added).)

The Fire Department All Unit Circular No. 202R regarding "Court Decisions and Department Policy Regarding Alcoholic Beverages" provides:

II. (C) Members shall not report for duty in an intoxicated condition or while under the influence of an intoxicating beverage.

II. (D) Blood-Alcohol Tests will be required when reasonable grounds exist for believing members are intoxicated or are under the influence of an intoxicating beverage while on duty. . .

(Defs.' Ex. 25.)

On July 1 1993 the plaintiff was escorted to the Bureau of Health Services. (Defs.' Ex. 9 at 30.) At that time the plaintiff completed and signed a Fire Department Testing Questionnaire (Defs.' Ex. 26) and before he provided a urine sample consented and granted permission for a specimen to be taken to determine the presence of controlled substances and other intoxicants. (Defs.' Ex. 26 27.) The questionnaire provided among other things just above Nocera's signature: "All positive specimens are retained for a minimum of two months. You have the right to have your specimen retested at another laboratory at your own expense. . . ." (Id.)

The plaintiff also signed a "Drug Screen Requisition" which included the following consent above his signature: "I grant permission for a specimen to be taken to determine the presence of controlled substances and other intoxicants."

(Defs.' Ex. 27.)

On Friday July 2 1993 the day after the plaintiff's drug test the plaintiff was absent without leave and defendant Fusco was so notified. (Defs.' Ex. 23 at 38; Defs.' Ex. 28.)

On Tuesday July 6 1993 the plaintiff was again absent without leave although he did call. (Defs.' Ex. 28.)

The defendants maintain that by July 6 1993 a determination was made to terminate the plaintiff's probationary employment because the plaintiff had failed to report his arrest and had been away without leave on July 2 and July 6 1993. (Defs.' Ex. 23 at 38; Fusco Aff. PP 19-22.) On Wednesday July 7 1993 the plaintiff was absent without leave again. (Defs.' Ex. 28.) On July 7 1993 the Bureau of Health Services was notified that the plaintiff tested positive for cannabinoids. (Defs.' Ex. 29.)

On July 8 1993 the plaintiff signed a resignation from his position as a probationary fire fighter in lieu of termination. (Defs.' Ex. 30.)

The criminal trespass charges against the plaintiff were dismissed on July 27 1993. (Complaint at P 50.)

III.

All parties move for summary judgment on the plaintiff's claim that subjecting the plaintiff to a drug urinalysis test was an unreasonable search and seizure in violation of the Fourth and Fourteenth Amendments and thereby a violation of 42 U.S.C. SEC. 1983.

All parties agree that a compelled drug urinalysis test is a search and seizure that must satisfy the reasonableness standard of the Fourth Amendment as applied to the states by the Fourteenth Amendment. See Skinner v. Railway Labor Executives' Ass'n 489 U.S. 602 617 103 L. Ed. 2d 639 109 S. Ct.1402 (1989); National Treasury Employees Union v. Von Raab 489 U.S. 656 665 103 L. Ed. 2d 685 109 S. Ct. 1384 (1989); McDonell v. Hunter 809 F.2d 1302 1307 (8th Cir. 1987); Everett v. Napper 833 F.2d 1507 1511 (11th Cir. 1987); Copeland v. Philadelphia Police Dep't 840 F.2d 1139 (3d Cir.1988). *fn3

It is well established that because of the important government interests in assuring that employees in safety-sensitive jobs are free from the effects of drug use in connection with performing their jobs and because of the lower expectations of privacy for employees performing such jobs the government need not have a warrant or probable cause before requiring such an urinalysis test. See Skinner 489 U.S. at 622-33; Von Raab 489 U.S. at 666-77; Ford v. Dowd 931 F.2d 1286 1292 (8th Cir. 1991); Securities and Law Enforcement Employees Dist. Council 82 v. Carey 737 F.2d 187 202 (2d Cir. 1984).

When a drug urinalysis test is part of a systematic uniformly applied program it may meet the reasonableness requirement without requiring a showing of reasonable suspicion that an individual required to be tested had been using drugs. See Skinner 489 U.S. at 624; Von Raab 489 U.S. at 666-68.

Where as here however the public employer singles out such an employee in a safety sensitive job and requires the employee to submit to a drug urinalysis test the public employer must have "reasonable suspicion" of drug use by the person subjected to the test. See Copeland 840 F.2d at 1144; Everett 833 F.2d at 1511; Coppinger v. Metro-North Commuter R.R. 861 F.2d 33 35 (2d Cir.1988).

Reasonable suspicion is a lower standard than probable cause. Ford 931 F.2d at 1292; Burka v. New York City Transit Auth. 739 F. Supp. 814 831-832 (S.D.N.Y. 1990). Reasonable suspicion must be based on an analysis of all the circumstances as they appeared to the official making the judgment at the time. See Carey 737 F.2d at 207.

In determining reasonable suspicion "officials 'must point to specific objective facts and rational inferences that they are entitled to draw from those facts in light of their experience.'" Carey 737 F.2d at 205 (quoting Hunter v. Auger 672 F.2d 668 674 (8th Cir. 1982)); see also Coppinger 861 F.2d at 35. Factors that may affect the reasonableness of the official's suspicion are the nature of the tip or information; the reliability of the informant; the degree of corroboration; and other facts contributing to suspicion or lack thereof. Carey 737 F.2d at 205; see also Copeland 840 F.2d at 1144.

The parties do not dispute that the defendants needed individualized reasonable suspicion to believe that the plaintiff was using drugs before requiring the drug urinalysis test in this case. They part ways on whether the defendants had such reasonable suspicion based on specific articulable facts. I find that the defendants had such reasonable suspicion.

Before ordering the plaintiff's urinalysis test Chief Fusco had received the report from the Fire Department's Bureau of Investigations and Trials. This report indicated that the plaintiff had been arrested for trespassing at what the Housing Police described as a "known drug location." The plaintiff was arrested for trespassing on June 11 1993. The Fire Department was notified by the Division of Criminal Justice on June 29 1993. As of that time contrary to Fire Department rules the plaintiff had not reported his arrest. He admitted to the arrest only after being confronted with it. While certainly not dispositive an arrest in a known drug location is a factor that can be taken into account in determining reasonable suspicion. See e.g. United States v. Lender 985 F.2d 151 154 (4th Cir.1993); United States v. Moore 817 F.2d 1105 1107 (4th Cir.1987); see also United States v. Constantine 567 F.2d 266 267 (4th Cir.1977).

The cases on which the plaintiff relies do not establish that an arrest in a known drug location is not an objective factor that can be taken into account in determining reasonable suspicion. Rather these cases concern whether such a factor alone establishes probable cause or reasonable suspicion. Cf. Ybarra v. Illinois 444 U.S. 85 62 L. Ed. 2d 238 100 S. Ct.338 (1979) (mere proximity to others independently suspected of criminal activity did not establish probable cause; police lacked reasonable suspicion with respect to frisk for weapons); Fiorenza v. Gunn 140 A.D.2d 295 527 N.Y.S.2d 806 (2d Dept. 1988) (mere presence in area where identified employees were reportedly meeting to drink and take drugs did not constitute reasonable individualized suspicion with respect to the petitioner).

When the plaintiff failed to report his arrest Chief Fusco could reasonably conclude that the plaintiff was attempting to conceal the fact of his arrest and to forestall any follow up inquiries. While the plaintiff disputes whether he was arrested as opposed to simply receiving a desk appearance ticket his statement to the Department acknowledged that he was arrested. Chief Fusco had objective information from a reliable source--the arrest record itself. The arrest record was corroborated by the Department's investigation and the plaintiff's own statement indicating that he had been arrested. And while the plaintiff disputes that he was aware of the Department rule requiring such reports Chief Fusco was entitled to rely on Department policy of which under Department practice the plaintiff was made aware at the Academy. Moreover while the plaintiff asserts that he only received a Desk Appearance Ticket under Department rules he was still required to report even a Desk Appearance Ticket.

Chief Fusco also relied on the fact that in less than two months as a probationary fire fighter the plaintiff had three absences two of which were on Fridays. In addition the investigation showed--and Chief Fusco relied upon-the fact that the plaintiff had canceled several pre-appointment medical examinations. These were objective criteria which in Chief Fusco's experience he found supported a reasonable suspicion of drug use. While the plaintiff urges other explanations--including medical reasons for the absences-each circumstance could be considered a part of the totality of the circumstances that led Chief Fusco to conclude that the plaintiff was using drugs. See also Copeland 840 F.2d at 1144 (allegations of drug use later recanted and uncorroborated still established reasonable suspicion to require drug urinalysis test of policemen); Everett 833 F.2d at 1511-12 (uncorroborated allegation of drug use against fire fighter made by another fire fighter who was a confirmed drug dealer was sufficient to constitute reasonable suspicion to require a drug urinalysis test). What Court of Appeals for the Eleventh Circuit said in Everett also applies in this case:

The City has a compelling interest in having its firefighters free from drugs. Firefighters must be prepared to react and make decisions quickly in order to insure public safety. Under the circumstances articulated in this case the standard used by the officials conducting the internal administrative investigation to determine who should be tested was reasonable.

Id. at 1511-12.

Therefore under the totality of the circumstances the defendants had reasonable suspicion based on objective identifiable facts to require the plaintiff to take a drug urinalysis test. Summary judgment is justified for the defendants and against the plaintiff dismissing the plaintiff's claim for a violation of SEC. 1983 based the claim that the test violated the constitutional prohibition against unreasonable searches and seizures.

IV.

The defendants also move for summary judgment to dismiss the plaintiff's claim that he was deprived of a liberty interest because he was not afforded a "name-clearing" hearing to refute the results of the drug test.

Court of Appeals for the Second Circuit explained the necessary elements of such a claim:

A government employee's liberty interest is implicated where the government dismisses him based on charges "that might seriously damage his standing and associations in the community" or that might impose "on him a stigma or other disability that foreclose[s] his freedom to take advantage of other employment opportunities." . . . In addition the charges against the employee must be made "public" by the government employer and the employee must allege that the charges are false. Where the employee's liberty interest is implicated he is entitled under the due process clause to notice and an opportunity to be heard.

Brandt v. Board of Cooperative Educ. Servs. 820 F.2d 41 42-43 (2d Cir. 1987) (citations omitted); Burka v. New York City Transit Auth. 739 F. Supp. 814 833-834 (S.D.N.Y. 1990); Ludd v. Rockville Centre Union Free Sch. Dist. 1990 U.S. Dist.13594 *29 1990 WL 31650 at *11-12 (E.D.N.Y. 1990) reh'g 1990 WL 137388 (E.D.N.Y. 1990).

The defendants argue that the plaintiff has no liberty interest because the drug test results are accurate and because they gave the plaintiff opportunities to retest the sample if he so desired. The plaintiff has refused those opportunities. Nevertheless Brandt dictates that a plaintiff need only "raise the issue of falsity regarding the stigmatizing charges--not prove it-in order to establish a right to a name-clearing hearing." 820 F.2d at 43. See also Burka 739 F. Supp. at 833. Therefore the defendants are not entitled to summary judgment on that ground.

The defendants are correct however that the plaintiff must show that the alleged defamation or stigma occurred "in the course" of termination or suspension. Paul v. Davis 424 U.S. 693 710 47 L. Ed. 2d 405 96 S. Ct. 1155 (1976); Siegert v. Gilley 500 U.S. 226 233-34 114 L. Ed. 2d 277 111 S. Ct.789 (1991); Brandt 820 F.2d at 45; see also Burka 739 F. Supp. at 833; Sims v. City of New London 738 F. Supp.638 646-47 (D. Conn. 1990) (no constitutional claim for employee who resigns and was not discharged). If an employee resigns rather than being terminated the employee cannot claim that his liberty was taken away without due process. See Hargray v. City of Hallandale 57 F.3d 1560 1567 (11th Cir. 1995); Angarita v. St. Louis County 981 F.2d 1537 1544 (8th Cir. 1992); Christie v. United States 207 Ct. Cl. 333 518 F.2d 584 588-89.(Ct. Cl.1975); see also Codd v. Velger 429 U.S. 624 628 51 L. Ed. 2d 92 97 S. Ct. 882 (1977) (per curiam).

In this case the plaintiff signed a written resignation and admitted at his deposition that he resigned. See Def. Ex. 30; Def. Ex. 5 at 219. The plaintiff testified that he was given "an option to either be terminated or to resign." (Defs.' Ex. 5 at 209.) He testified that he chose to resign (Id.) and that his father subsequently told him it was a mistake (Id. at 219.).

A resignation from public employment could be sufficiently involuntary to trigger the protections of the due process clause if it were obtained by coercion duress or material misrepresentations. See Hargray 57 F.3d at 1567-68 (listing cases on whether resignations were coerced for purposes of a deprivation of a property interest without due process); Angrita 981 F.2d at 1544 ("A resignation is presumed voluntary unless the employee comes forward with sufficient evidence to establish that the resignation was involuntarily extracted."). In this case however there is no evidence proffered by the plaintiff to show that his resignation--which he indisputably signed and admitted to at his deposition--was the result of coercion duress or material misrepresentation. While the plaintiff asserts that his resignation was not voluntary he offers no facts to support such a claim. In response to a motion for summary judgment where as here the moving party offers sufficient evidence to support its claim the nonmoving party must come forward with evidence that would be sufficient to support a jury verdict in his favor. Mere conclusory allegations are not sufficient. See Goenaga v. March of Dimes Birth Defects Foundation 51 F.3d 14 18 (2d Cir. 1995); Dister v. Continental Group 859 F.2d 1108 1114 (2d Cir. 1988); Meiri v. Dacon 759 F.2d 989 998 (2d Cir. 1985).

The choice the defendants afforded the plaintiff a probationary fire fighter between resignation or termination--the only fact that the plaintiff relies upon to show coercion--does not alone constitute duress or coercion. Because the government has the legal right to terminate a probationary employee and indeed the plaintiff has withdrawn any claims for a violation of a property interest a threat to take an action that the public employer is legally entitled to take cannot constitute duress or coercion. See Stefandel v. Sielaff 176 A.D.2d 651 575 N.Y.S.2d 304 (1st Dept. 1991); Faillace v. Port Auth. 130 A.D.2d 34 42 517 N.Y.S.2d 941 946 (1st Dept. 1987); Cacchioli v. Hoberman 31 N.Y.2d 287 292 291 N.E.2d 117 119 338 N.Y.S.2d 865 868 (1972).

In Hargray v. City of Hallandale 57 F.3d 1560 (11th Cir. 1995) Court found that a claim for deprivation of property without due process by a former city employee should be dismissed despite allegations of coercion. Considering the totality of the circumstances and using an objective standard to determine coercion Court found that the former employee was not coerced despite a threat in that case that the employer might press criminal charges. Court ruled that "resignations can be voluntary even where the only alternative to resignation is facing possible termination for cause or criminal charges. Resignations obtained in cases where an employee is faced with such unpleasant alternatives are nevertheless voluntary because 'the fact remains that plaintiff had a choice. [Plaintiff] could stand pat and fight.'" 57 F.3d at 1568 (citation omitted). *fn4 The plaintiff had the same choice here.

Hence in this case the plaintiff cannot prevail on his deprivation of liberty claim because the evidence establishes that the plaintiff resigned and was not terminated. The plaintiff has failed to adduce any evidence that his resignation was coerced.

The plaintiff is also not entitled to relief on this claim because he has failed to show that state procedural remedies are inadequate.

A plaintiff alleging a denial of procedural due process must prove as an essential element of the claim that state procedural remedies are inadequate. This requires a court to consider not simply the administrative proceedings that result in alleged injury but the totality of state process available including means that serve to "redress administrative error."

Ludd 1990 U.S. Dist.13594 at *30 1990 WL 31650 at *12 (citations omitted).

In Giglio v. Dunn 732 F.2d 1133 (2d Cir.) cert. denied 469 U.S. 932 83 L. Ed. 2d 265 105 S. Ct. 328 (1984) Court of Appeals for the Second Circuit concluded that a teacher could challenge the voluntaries of his resignation in an Article 78 proceeding under the N.Y.C.P.L.R. and that that opportunity provided all the process constitutionally due. See also Campo v. New York City Employees' Retirement Sys. 843 F.2d 96 102 (2d Cir.1988). In Ludd Court Raggi specifically found that Article 78 is an available procedural mechanism for a plaintiff complaining about the failure to hold a name-clearing hearing. "Requests for name-clearing hearings are in fact among those routinely entertained pursuant to Article 78." Ludd 1990 U.S. Dist.13594 at *31 1990 WL 31650 at *12 (citations omitted).

The plaintiff has proffered no explanation why this process provided by the state was in any way constitutionally inadequate. Therefore the plaintiff's claim of deprivation of liberty must also be dismissed for failure to demonstrate inadequate state procedural remedies. *fn5

V.

Each of the individual defendants is also entitled to judgment dismissing the claims against them based on qualified immunity.

Qualified immunity shields government officials from liability for civil damages when they are sued in their personal capacity as a result of their performance of discretionary functions and serves to protect government officials from the burdens of costly insubstantial lawsuits. Lennon v. Chief William P. Miller of the City of Troy 66 F.3d 416 420 (2d Cir.1995) (citing Harlow v. Fitzgerald 457 U.S. 800 818 73 L. Ed. 2d 396 102 S. Ct.2727 (1982)); Malsh v. Austin 901 F. Supp.757 764 (S.D.N.Y. 1995). Government officials performing discretionary functions are "shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow 457 U.S. at 818; see also Zavaro v. Coughlin 970 F.2d 1148 1153 (2d Cir.1992). Even where the plaintiff's federal rights and the scope of the official's permissible conduct are clearly established the qualified immunity defense protects a government actor if it was "objectively reasonable" for him to believe that his actions were lawful at the time of the challenged act. Anderson v. Creighton .483 U.S. 635 641 97 L. Ed. 2d 523 107 S. Ct.3034 (1987); Robison v. Via 821 F.2d 913 921 (2d Cir. 1987) (citing Malley v. Briggs 475 U.S. 335 340-41 89 L. Ed. 2d 271 106 S. Ct.1092 (1986)). The objective reasonableness test is met--and the defendants are entitled to qualified immunity--if "officers of reasonable competence could disagree" on the legality of the defendants' actions. Malley 475 U.S. at 341; accord Golino v. City of New Haven 950 F.2d 864 870 (2d Cir.1991) cert. denied sub nom. Lillis v. Golino 505 U.S. 1221 120 L. Ed. 2d 902 112 S. Ct.3032 (1992). Further the use of an "objective reasonableness" standard permits qualified immunity claims to be decided as a matter of law. Cartier v. Lussier 955 F.2d 841 844 (2d Cir. 1992).

The objective reasonableness standard is suitable for determination on summary judgment. As Court of Appeals for the Second Circuit explained:

The rule requiring the Court to resolve questions of reasonableness on summary judgment in qualified immunity cases where the material facts are not in dispute is consistent with the doctrine's purpose of providing immunity from suit as well as a defense to liability. ... If there is no dispute about the material facts the district court should assess the reasonableness of the defendant's conduct under the circumstances presented in order to determine on summary judgment whether defendants are entitled to qualified immunity.

Lennon 66 F.3d at 421. When the issue is the objective reasonableness of the defendants' conduct "if Court determines that the only conclusion a rational jury could reach is that reasonable officers would disagree about the legality of the defendants' conduct under the circumstance summary judgment for the officers is appropriate." Id.

With respect to the plaintiff's claim that the required drug urinalysis test violated his constitutional right to be free from unreasonable searches and seizures the plaintiff has met the first test to overcome qualified immunity because the law was clearly established as the parties agree that public employers must have reasonable suspicion before requiring an individualized drug test. The plaintiff however has failed to demonstrate that no officer of reasonable competence could have made the same choice in similar circumstances. The standard to be applied by the officers was individualized reasonable suspicion a standard less than probable cause and which in this case was based on several articulable facts pointing to drug use by the plaintiff. Court has already found those facts sufficient to establish reasonable suspicion in this case. At the very least reasonable officers could disagree about the existence of reasonable suspicion to authorize the test in these circumstances which entitles the defendants to qualified immunity. See Lennon 66 F.3d at 423-25. *fn6

With respect to the plaintiff's claim that he was deprived of liberty without due process he cannot overcome the defense of qualified immunity because he has not established a constitutional right. While the deprivation of liberty only after due process is a clearly established right it has not been applied in the context of resignations by public employees nor has the availability of the Article 78 proceeding been found to be inadequate state due process. To the extent that there was any such right it could not be found to be clearly established. Moreover not providing such a hearing in the circumstances of this case given the absence of clear guidance requiring such a hearing could not be considered to be objectively unreasonable.

VI.

Summary judgment must also be granted for the New York City Fire Department on an independent basis. To hold a municipality liable under Sec. 1983 for the unconstitutional acts of its employees the plaintiff must plead and prove that his constitutional rights were violated that the alleged actions by the employees were the result of an official policy custom or practice of the municipal defendant and that the policy custom or practice caused the plaintiff's alleged injuries. City of Canton Ohio v. Harris 489 U.S. 378 385 103 L. Ed. 2d 412 109 S. Ct.1197 (1989); Monell v. New York City Dep't of Social Servs. 436 U.S. 658 690-695 56 L. Ed. 2d 611 98 S. Ct. 2018 (1978); Blum v. Koch 716 F. Supp. 754 758-59 (S.D.N.Y. 1989). Proof of a single incident of unconstitutional activity is insufficient to demonstrate the existence of a policy. City of Oklahoma v. Tuttle 471 U.S. 808 821 85 L. Ed. 2d 791 105 S. Ct. 2427 (1985) (opinion of Rehnquist J.)

Here the New York City Fire Department could not be liable because there was no underlying violation. Moreover there is no evidence that any alleged unconstitutional acts were part of a municipal policy practice or custom. The plaintiff has not even alleged what policy practice or custom caused his injuries much less presented any evidence to support such an allegation. Indeed with respect to the required drug urinalysis test the Fire Department regulations specifically provide that before requiring such a test the authorizing office must have "reasonable grounds" for authorizing such a test. That policy is not unconstitutional under the standards all the parties agree should be applied to determining the constitutionality of individual drug tests.

CONCLUSION