The problem of drug abuse in the United States has long ceased to be a matter of individual concern. It has become a serious problem in the workplace. It has been estimated that the total economic loss attributable to drug and alcohol abuse may be as much as one hundred billion dollars a year and that figure does not account for social costs. *fn1 Not surprisingly approximately one-third of all United States businesses and governmental entities have resorted to employee drug-testing programs. *fn2 The percentages vary according to industry but ninety-one percent of the public utilities and eighty-one percent of the transportation industries employ testing. *fn3

The need for such tests with respect to transportation workers is supported by a number of sources. The chairman of the National Transportation Safety Board suggested last year that one-half of all rapid transit accidents investigated in recent years have been due to drugs although no actual statistics were cited. *fn4 Federal Railroad Administrator John Riley has said that traces of drugs or alcohol were found in 5% of United States railroad employees tested following train accidents during 1986. *fn5 Public interest in this problem was heightened by the January 4 1987 collision near Baltimore involving a Conrail freight locomotive and an Amtrak passenger train which killed sixteen people. Tests indicated traces of marijuana in the blood and urine of the engineer and a crewman on the Conrail train. *fn6

The testing of transportation workers for drugs has produced vigorous opposition from some of the employees and their unions oftentimes resulting in constitutional and other challenges. We have before us three such actions brought by and on behalf of present former and prospective employees of the defendant New York City Transit Authority (the "TA") challenging that agency's drug-testing policy. *fn7 We are now asked to rule on various motions and cross motions for dismissal or summary judgment in these related cases.

I. FACTS

The TA policy compels employees and job applicants to submit to urinalysis tests for detection of narcotics including marijuana at various times and under a number of circumstances during their employment with the TA. The TA originally tested a single urine sample employing a procedure known as enzyme multiplied immunoassay technique ("EMIT"). For the last three years it has been taking two samples and using a second test known as bonded phase absorption with thin layer chromatography. *fn8

TA employees perform a wide variety of jobs and include bus and train operators mechanics conductors subway tower operators maintenance and cleaning people and numerous clerical employees. All employees are required to submit to drug testing: (1) as part of routine periodic physical examinations; (2) following extended absence or suspension; (3) during physical examinations consequent to promotion; (4) following on-duty incidents; (5) at any time if a controlled substance had been identified in a prior test; or (6) upon suspicion of a supervisor that an employee is impaired as a result of drug use. Penalties vary with the employee's length of service and service record but employees such as plaintiffs whose tests revealed marijuana use could be dismissed suspended or required to undergo drug Counseling. A refusal to submit to testing could result in immediate dismissal or in the case of job applicants ineligibility for hire.

As public employees it might be thought that the plaintiffs have reduced expectations concerning their rights to privacy as compared to the concern for the public safety. Ironically however because they are public employees the parties performing the tests are governmental entities and the fourth amendment made applicable to the states through the fourteenth amendment protects citizens from unreasonable governmental intrusions. Consequently it can be argued that procedures that might be allowable by a private employer may not be constitutionally permissible if done by a public employer. *fn9

The several actions before us center around many of the same essential considerations principally the issue of whether drug testing constitutes an unreasonable search or seizure under either the United States or the New York Constitution. Nonetheless there are certain distinctions which along with the disposition of the various motions should be noted at the outset. Generally the defendants have moved to dismiss virtually all claims pursuant to Fed. R. Civ. P. 12(b). All plaintiffs have moved for partial summary judgment on the primary search-and-seizure claim as well as for summary judgment on certain of their individual claims.

The Burka Action *f*fn10

The Burka plaintiffs seek to represent five proposed subclasses of employees who have been or could be subjected to adverse employment action based on drug-test results. The plaintiffs seek to challenge all instances of drug testing except those when a supervisor has reason to believe the employee is impaired because of drug use or when an employee previously has tested positive for drug use.

The Burka plaintiffs raise claims under section 504 of the Federal Rehabilitation Act of 1973 along with claims of violations of due process equal protection and unreasonable search and seizure under both the Federal and State constitutions. In addition they claim a violation of their Federal constitutional right to privacy and assert pendent state claims under N.Y. Exec. Law SEC 296(1)(a) & (d) (McKinney 1982) and N.Y. Civ. Serv. Law SEC. 50(4) (McKinney 1983). These plaintiffs move for summary judgment on two of their claims: (1) unreasonable search and seizure; and (2) a portion of their due process claim. The plaintiffs allege a violation of their right to be free from unreasonable search and seizure in that the TA's urinalysis testing is not based on probable cause or even reasonable suspicion of drug abuse does not establish whether an employee is impaired by the alleged marijuana use and bears no rational relationship to the TA's interest in public safety.

The defendants move to dismiss the entire Burka action on various grounds. They argue that the plaintiffs' claim under the Rehabilitation Act should be dismissed because the plaintiffs are not "handicapped" persons and thus are not protected within the meaning of that Act. Defendants also contend that the plaintiffs fail to make out a Federal or State claim for unreasonable search or seizure because drug testing is rationally related to the TA's legitimate interest in safety. They argue further that drug use does not fall within the parameters of the right to privacy whatever those parameters may be. Defendants maintain that the due process claim must fail since drug testing is scientifically sound and positive results provide a valid basis for termination and that whatever hearings may be required are provided to those so entitled. The equal protection claim fails defendants contend since drug testing survives scrutiny under the rational relationship test which they argue must apply in this case. Finally defendants urge that the pendent state claims be dismissed. *fn11

The Transport Workers Action

In a related action the Transport Workers Union (the "TWU") challenges defendants' drug-testing policies on behalf of its members. The TWU seeks declaratory and injunctive relief ordering that the defendants: (1) only be permitted to subject TA employees to drug testing based on reasonable suspicion of drug use that is causing impairment; (2) be required to establish guidelines for determining reasonable suspicion; and (3) be required to establish safeguards against supervisory abuse in ordering employees to submit to drug tests. These claims are asserted under the fourth and fifth amendments to the United States Constitution. The TWU also contends that because the TA treats an employee's refusal to submit to urinalysis testing as an admission of drug use the TA policy violates the fifth amendment. The defendants move to dismiss the TWU action in its entirety while the TWU moves for summary judgment.

The Fa Action

Plaintiff Fa was employed by the TA for 17 years and was a bus driver. The day before taking five weeks of paid vacation he was unable to work because of illness. When he returned five weeks later he was given a complete physical including urinalysis which tested positive for marijuana. Denying such use he refused Counseling services and was then suspended and ultimately dismissed.

Fa raises claims virtually identical to those asserted in the Burka suit. Fa adds however that he was denied due process because the TA failed to give preclusive effect to a decision issued by an administrative law Court who in ruling that Fa was eligible for employment benefits based the decision in part on Fa's "credible and consistent testimony" denying marijuana use. Fa moves for summary judgment on his search and seizure claims and his due process/collateral estoppel claim. *fn12

Intervenor Salazar's Claims

An intervenor in the Burka action plaintiff Salazar was also a bus driver. He had been employed for six years and had been issued 33 "cautions." As part of a "periodic" physical examination a urinalysis showed positive findings of marijuana (on two separate tests). He was suspended for thirty days and given a warning.

He asserts claims under Federal and State law for violation of his right to be free from unreasonable search and seizure. He also raises a due process challenge to the "substantial evidence " standard used by the TA to sustain disciplinary action taken against him because of drug-test results. *fn13 In addition Salazar claims that the TA's testing constitutes an invasion of privacy and further that the inherent unreliability of the tests violates fundamental notions of due process. In particular Salazar points out that the tests do not show how long ago the drug was ingested or whether it presently impairs job performance. Salazar moves for summary judgment on his Federal and State search and seizure claims and on his additional claim challenging the standard used by the TA to review drug-violation claims.-

II. DISCUSSION

a. The Rehabilitation Act and Related Claims

Section 504 of the Rehabilitation Act of 1973 29 U.S.C. SEC. 794 (1982) ("section 504") prevents an employer receiving Federal financial assistance from discriminating against an "otherwise qualified handicapped individual. " *fn14 Section 7 of the Act ("section 7") defines a "handicapped individual " for employment purposes as any person who has or is perceived as having "a physical or mental impairment which substantially limits one or more of such persons major life activities." 29 U.S.C. SEC. 706(7)(B) (1982). In 1978 Congress amended section 7 to provide expressly that for purposes of employment discrimination the term "handicapped individual" . . . does not include any individual who is an alcoholic or drug abuser whose current use of alcohol or drugs prevents such individual from performing the duties of the job in question or whose employment by reason of such current alcohol or drug abuse would constitute a direct threat to property or the safety of others.

Pub. L. No. 95-602 SEC. 122(a) 92 Stat. 2955 2984-85 (1978) ("1978 amendment").

Grafting the ambiguous language from the 1978 amendment the Burka and Fa complaints allege that plaintiffs are or are perceived by the TA as being "drug abusers" by virtue of their positive drug-test results. As such plaintiffs contend they are "handicapped individuals" within the meaning of the statute and under the terms of the 1978 amendment cannot be discharged or rejected for hire unless it can be shown that they cannot perform their job-related duties or that they constitute a direct threat to public safety. It is alleged that since the TA based the hiring or firing of plaintiffs solely on the basis of drug-test results and made no inquiry into job-related performance or capability the TA's actions are in violation section 504.

There is little case law addressing the specific question of whether drug abuse (or more specifically in these cases marijuana abuse) generally constitutes a handicap for purposes of protection under section 504. *fn15 The issue appears to be one of first impression for this circuit. *fn16 As Justice Richey accurately prophesied however Rehabilitation Act challenges are a predictable and inevitable consequence of employer drug testing. C. Richey Manual on Employment Discrimination Law and Civil Rights Actions in the Federal Courts at F-3 to F-4 (Federal Judicial Center rev. ed. 1986). For the reasons that follow we find that plaintiffs have not stated a cause of action under section 504 of the Rehabilitation Act and we dismiss those claims.

Plaintiffs' claims are premised on a curious interpretation of the 1978 amendment. In essence Fa and the Burka plaintiffs contend that due to their use or perceived use of illegal narcotics they are protected from adverse employment action as long as they (plaintiffs) can continue to do the job in spite of their alleged "handicap." On its face this interpretation defies logic. Congress in recent years has devoted millions of Federal tax dollars to the war against drugs and consistent with that effort Exec. Order No. 12 564 3 C.F.R. 224 (1987) reprinted in 5 U.S.C. SEC. 7301 note at 175-77 (Supp. IV 1986) demands that Federal agencies begin implementing steps to eradicate drugs in the workplace. It would seem untenable to suggest that the Congress and the Executive branch by administrative regulation constructed and maintains the Rehabilitation Act partly as a bulwark to protect illegal drug users from "discrimination" in employment. The notion that Congress would consider illegal drug abusers as a general group to be "handicapped individuals" within the meaning of section 504 is antithetical to the goals of sound law enforcement and trivializes the commonly understood meaning of the word "handicapped."

We believe therefore that in enacting the 1978 amendment to section 7 Congress intended a meaning far narrower than that espoused by plaintiffs. We hold today that section 504 protects only those otherwise qualified drug abusers who have been or are being rehabilitated. It does not protect the illegal narcotics abuser who has not sought or is not seeking treatment for his or her condition. Contrary to plaintiffs' reading this critical distinction finds ample support in the legislative history.

After adoption of the 1973 Act a consensus developed amongst Federal regulators whereby "alcoholics" and "drug addicts" were interpreted as being included within the meaning intended by Congress of the term "handicapped individual." The Department of Transportation regulations which control in the cases at bar expressly provide that "alcoholism" and "drug addiction" are to be considered "physical or mental impairments" under the Act and as such constitute handicaps for purposes of protection under section 504. 49 C.F.R. SEC. 27.5 at 190 (1986). Extensive explanations of this issue provided by the then-Secretary of Health Education and Welfare and the Counsel General support this reading. 42 Fed. Reg. 22 686 (May 4 1977); 43 Op. Att'y Gen. 12 (1977). In apparently the only case to address specifically this issue it was held consistent with those administrative interpretations that section 504 does extend protection to drug addicts but only to those who were rehabilitated or were in the process of rehabilitating and not to drug users generally. Davis v. Bucher 451 F. Supp. 791 796 (E.D. Pa. 1978).

The 1978 amendment on which plaintiffs rely apparently was enacted in response to employer concerns with these interpretations especially as they related to application under section 503 of the Act 29 U.S.C. SE.C 793 (1982) ("section 503") which requires Federal contractors to take affirmative action in hiring "handicapped individuals." Employers concerned that affirmative action and other Rehabilitation Act requirements would force them to hire alcoholics and drug addicts without regard to their qualifications sought a clarification of the law. See 124 Cong. Rec. 30 323 (1978) (statement of Sen. Williams) (Congress has "been under pressure to adopt language that would exclude alcoholics and drug dependent persons from all protection under sections 503 and 504 . . . ."); id. at 30 324 (statement of Sen. Hathaway) ("The purpose of the pending amendment is to meet the concerns of employers . . . [regarding employment of alcoholics and drug addicts].").

The 1978 change originated as a committee amendment offered by Congressman Erlenborn to H.R. 12467 an omnibus bill addressing handicap and other concerns. It amended section 7 of the Rehabilitation Act to provide that "for purposes of sections 503 and 504 [the term 'handicapped individual'] does not include any person who is an alcoholic or who is a drug abuser in need of rehabilitation." H.R. Rep. No. 1149 95th Cong. 2d Sess. 49 (1978). There was no discussion of the Erlenborn Amendment on the House floor during consideration of H.R. 12467 but the committee report makes clear the intention behind the amendment:

The committee emphasizes that an individual with a record of alcohol or drug abuse or who is regarded as being an individual who is an alcoholic or drug abuser may still be protected by the provisions of sections 503 and 504 if he or she is not in need of rehabilitation. This protects otherwise qualified self-reformed or rehabilitated alcoholics or drug abusers from unreasonable discrimination.

Id. at 23 (emphasis added). There can be no doubt therefore that the original thrust of the 1978 change was to clarify that coverage under sections 503 and 504 was even more limited than articulated in Bucher and would be extended only to rehabilitated drug abusers. There is no reading that provides initial support for plaintiffs' interpretation that the 1978 change was designed to expand protection beyond Bucher to include drug abusers generally.

During Senate consideration of the companion bill to H.R. 12467 Senators Cannon and Williams offered a modified version of the Erlenborn Amendment which was approved on voice vote by the Senate. The Cannon-Williams Amendment excluded from the definition of "handicapped individual " for employment purposes "an alcoholic . . . or drug abuser . . . whose condition . . . renders that individual not qualified for employment by preventing him from performing the essential functions of the job in question." 124 Cong. Rec. 30 322 (1978). During floor debate on the amendment Senator Williams noted that the amendment's purpose was to make "clear that the intent of Congress is not to force employers to hire alcoholics or drug-dependent persons to perform jobs for which their condition makes them unsuited." Id. at 30 324. In that sense the Senate amendment consistent with the concerns apparently expressed by employers clarified that certain alcoholics or drug abusers even if "handicapped individual[s]" under the Act are not "otherwise qualified" for employment if the alcoholism or drug addiction renders a person unfit for employment.

Plaintiffs however focus on the Senate's decision to eliminate the "in-need-of-rehabilitation" language contained in the Erlenborn Amendment. Since the Senate bill and ultimately the statute referenced only "drug abusers" generally and was not limited to "drug abusers in need of rehabilitation " all drug abusers plaintiffs argue qualify for protection under section 504. Again the legislative history belies plaintiffs' interpretation. The Senate's concern with the Erlenborn language was that it was overly broad and might have the effect of excluding from protection all alcoholics and drug abusers. 124 Cong. Rec. 30 323 (statement of Sen. Williams). The Cannon-Williams Amendment by deleting the "in-need-of-rehabilitation" language sought merely to ensure that protection would be provided to both rehabilitating and rehabilitated employees if otherwise qualified. As Senator Williams made clear: The House language would require that anyone who wants protection against discrimination must quit any Counseling or aftercare program for fear of being labeled "in need of rehabilitation " which would deny him protection.

Many authorities including the Federal courts have recognized that persons stabilized in methadone maintenance treatment are fully employable. If the House-passed amendments became law such persons might be denied employment rights because they are taking a drug for their condition and [sic] therefore "In need of rehabilitation."

Id. *fn17 Thus the thrust of the Erlenborn Amendment -- to ensure employers and others that sections 503 and 504 extended only limited coverage to certain alcohol and drug abusers -- remained intact. The Senate amendment merely made clear that coverage although limited would be provided to both rehabilitated and rehabilitating employees.

The final language emanating from the conference committee and enacted into law which sanitized the Senate amendment and added a further provision allowing employers to discharge alcoholics or drug abusers who constitute "a direct threat to property or the safety of others " does not alter this reading of congressional intent. In the only House or Senate statement discussing the conference committee language Senator Williams concluded:

This amendment is designed to clear up some misunderstandings about the employment rights of alcoholics and drug addicts under the act . . . . First while the legislative history of the 1973 act as authoritatively interpreted by [administrative agencies] made clear that qualified individuals with conditions or histories of alcoholism or drug addiction were protected from discrimination by covered employers this amendment codifies that intent. This explicit protection is long overdue and well warranted. The experience of treatment professionals and major employers alike has demonstrated that many recovered alcoholics and drug abusers perform competently and reliably . . . . At the same time the language makes clear that an employer cannot assume that a history of alcoholism or drug addiction including a past addiction currently treated by methadone maintenance poses a sufficient danger in and of itself to justify exclusion.

124 Cong. Rec. 37 509-510 (emphasis added).

In the final analysis then the legislative history makes unmistakably clear that Congress did not intend to broaden coverage under sections 503 and 504 beyond rehabilitated and rehabilitating drug abusers established limits already recognized by "many authorities including the Federal courts." 124 Cong. Rec. 30 323 (statement of Sen. Williams). Rather the 1978 amendment was designed to ensure employers that rehabilitated and rehabilitating drug abusers even if protected could nonetheless be discharged or considered ineligible for hire if the individual's condition prevented him or her from performing the job in question or constituted a threat to property or public safety.

Plaintiffs make much of the fact that the conference report suggests that "active alcoholics or drug abusers" are protected under sections 503 and 504. H.R. Conf. Rep. No. 1780 95th Cong. 2d Sess. 102 (1978) (emphasis added). Similar references were made during debate on the Cannon-Williams Amendment. 124 Cong. Rec. 30 324 (1978) (statement of Sen. Williams); id. (statement of Sen. Hathaway). Plaintiffs contend that since "active" drug abusers are protected any current user of marijuana must be considered a "handicapped individual" for purposes of section 504. We disagree. We believe that any reference to the word "active" merely reflects the Senate's interest in ensuring protection not only for rehabilitated abusers but for those drug abusers who currently are seeking treatment as well. As our opinion makes clear we view this as the crucial distinction between the approach originally adopted by the House under the Erlenborn Amendment and the resulting Senate language (as modified by conference). Use of the word "active" at various points in the legislative history therefore merely confirms rather than contradicts our reading of congressional intent. See especially id. (statement of Sen. Williams) (noting many alcoholics or drug addicts "remain active in . . . Alcoholics Anonymous or Narcotics Anonymous") (emphasis added).

We think it evident from this study of the legislative history that although the language of the 1978 amendment "is not free from ambiguity " New York City Transit Auth. v. Beazer 440 U.S. 568 581 59 L. Ed. 2d 587 99 S. Ct. 1355 (1979) Congress's meaning is clear -- sections 503 and 504 extend protection only to rehabilitated or rehabilitating drug abusers. *fn18 This is consistent with sound public policy. It encourages those abusers of illegal narcotics who have not done so to seek treatment for their problem but it does not provide those same abusers with the assurance of safe haven in the workplace should they instead choose to continue their illegal activity and ignore help.

Applying this holding to the facts of the cases at bar we find that Fa and the Burka plaintiffs have not stated claims under section 504. The TA policy expressly provides that employees or applicants shall advise the TA if the individual is taking a medically authorized drug. Despite ample opportunity to do so both prior to and after testing plaintiffs have not advised the TA that any drug testing showing marijuana use could somehow be explained by be done; but more importantly it has not been done. In fact the complaints urge that certain of the plaintiffs do not use marijuana (and the tests therefore are in error) or that whatever use there may have been did not or would not affect job performance. No one has alleged that current drug use is somehow the result of participation in a treatment program. Accordingly the TA was certainly within its rights to assume that plaintiffs were not enrolled in any sort of rehabilitation program and could dismiss or refuse to hire plaintiffs on the basis of drug-test results without violating the Rehabilitation Act. *fn19 Because plaintiffs simply by virtue of their use or perceived use of marijuana do not qualify as "handicapped individuals" for purposes of protection under section 504 we dismiss the Rehabilitation Act claims. *fn20

These plaintiffs assert similar pendent state claims under the corollary provision of New York's Human Rights Law which prohibits employment discrimination based on "disability." N.Y. Exec. Law SEC. 296(1)(a) & (d) (McKinney 1982) ("section 296"). The scope of section 296 was discussed fully by General Counsel for the State Division of Human Rights in an inter-office memorandum dated November 21 1979 (attached as an exhibit accompanying plaintiffs' brief on the Burka motions). Based on a reading of that memo as well as the other material and cases cited in plaintiffs' brief on this question it is clear that our Rehabilitation Act analysis is equally applicable to section 296. We find that section 296 does extend protection to rehabilitated and rehabilitating drug abusers but that is of little avail to plaintiffs for the reasons set forth above. Accordingly plaintiffs claims based on New York's Human Rights Law also are dismissed.

The Burka plaintiffs also assert claims under N.Y. Civ. Serv. Law SEC. 50(4)(b) (McKinney 1983) ("section 50") which provides that applicants for civil service positions may be disqualified if that person "is found to have a mental or physical disability which renders him unfit" for employment. Like the Rehabilitation Act claim plaintiffs contend that there has been no showing by the TA that their alleged "disability" renders plaintiffs unfit for employment. Again we have read the material in plaintiffs' brief on this question and there is nothing to persuade us that coverage under section 50 is broader than or inconsistent with section 296 discussed above. Rather we find that section 50 is part of a consistent statutory scheme designed to provide New York's handicapped and disabled persons with protection against warrantless discrimination. For reasons we have made clear plaintiffs for employment purposes are not part of this protected class of handicapped or disabled employees and defendants' motion to dismiss the section 50 claim is granted.

b. Equal Protection Claims

The Equal Protection Clause prohibits any State from "deny[ing] to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV SEC. 1. The Burka plaintiffs Fa and Salazar allege a violation of their equal protection rights pursuant to 42 U.S.C. SEC. 1983 (1982) claiming that they "are not afforded the same protection as other disabled employees such as alcohol users . . . ." Burka Complaint para. 6 (emphasis added). We find plaintiffs' equal protection claims to be without merit on any number of bases.

First in a case involving an equal protection challenge to a prior TA rule prohibiting TA employees from using or possessing narcotics the Supreme Court noted: "In this case TA's Rule 11(b) places a meaningful restriction on all of its employees and job applicants; in that sense the rule is one of general applicability and satisfies the equal protection principle without further inquiry." New York City Transit Auth. v. Beazer 440 U.S. 568 588 59 L. Ed. 2d 587 99 S. Ct. 1355 (1979). The current policies in issue -- prohibiting drug use requiring drug testing and disciplining or refusing to hire those who test positive -- apply to all TA employees or applicants not just to plaintiffs or some other discrete class. Consistent with Beazer we see no equal protection violation and plaintiffs' challenges in that regard must be dismissed.

Second even if equal protection concerns are somehow implicated in these cases the plaintiffs have not stated valid equal protection claims. Plaintiffs attempt to craft claims by seeking refuge amidst an undefined broad class of "disabled" or impaired employees. They contend that they are treated differently than others (alcohol users) similarly situated within the class and that such disparate treatment bears no rational relationship to the TA's stated objectives. We find that analysis fatally flawed.

In our view perceived or actual users of illegal narcotics are not similarly situated with those who legally consume alcohol (and indeed plaintiffs have cited no cases that would support their conclusion to the contrary). Plaintiffs have tested positive for use of an illegal narcotic. This fact alone readily distinguishes them from those who consume and perhaps even abuse alcohol. Alcohol use is not per se illegal; marijuana use with rare exception is. Further as we made clear in our earlier analysis on the Rehabilitation Act claims this fact also distinguishes plaintiffs from those handicapped employees that might truly be considered as comprising a class of "disabled" employees. The fact that plaintiffs have tested positive for an illegal narcotic provides a more than sufficient "ground of difference that rationally explains the different treatment accorded" plaintiffs and alcohol users. Eisenstadt v. Baird 405 U.S. 438 447 31 L. Ed. 2d 349 92 S. Ct. 1029 (1972).

To the extent then that the instant facts somehow provide plaintiffs with shelter under the Equal Protection Clause we think it would be more accurate to view illegal narcotics users and perceived users as constituting their own class. So viewed and accepting as we must on a Rule 12(b)(6) motion plaintiffs' claims of disparate treatment we see no violation. The Equal Protection Clause "does not deny to States the power to treat different classes of persons in different ways. "Reed v. Reed 404 U.S. 71 75 30 L. Ed. 2d 225 92 S. Ct. 251 (1971). Thus disparate treatment of alcohol and drug users is justified under Reed. The only question before Court is whether the TA's treatment of plaintiffs and their "class" bears a rational relationship to the policy goals drug testing seeks to advance. There can be no question that it does. *fn21

The TA asserts that its policy is designed to help ensure a safe and dependable public transit system. Part and parcel of that goal it seems to us is maintaining public confidence in both the system and its employees. Drug testing by screening out illegal narcotics users certainly is rationally related to those ends. Marijuana use may not be considered by some to be as serious as other types of criminal activity. Marijuana use or possession nonetheless generally is illegal and the TA's efforts to screen out illegal narcotics users is rationally calculated to improve the safety of the system and enhance public confidence.

Plaintiffs argue that current drug-testing technology is imperfect and that a screening program based on a more individualized investigation designed to measure a particular employee's or applicant's qualifications would better serve the TA's goals. These facts even if true do not provide this court with sufficient grounds for striking down the policy. Massachusetts Bd. of Retirement v. Murgia 427 U.S. 307 316-17 49 L. Ed. 2d 520 96 S. Ct. 2562 (1976); Dandridge v. Williams 397 U.S. 471 485 25 L. Ed. 2d 491 90 S. Ct. 1153 (1970). The means chosen by the TA are rationally related to the goals asserted which is all that the equal protection clause would require in this case.

For all of these reasons plaintiffs' claims under the Equal Protection Clause are dismissed.

Plaintiffs assert a pendent equal protection claim under N.Y. Const. art. 1 SEC 11. It is well settled that protection under the equal protection clauses of the United States and New York constitutions are coextensive. Dorsey v. Stuyvesant Town Corp. 299 N.Y. 512 530 87 N.E.2d 541 (1949) cert. denied 339 U.S. 981 94 L. Ed. 1385 70 S. Ct. 1019 (1950). Accordingly that claim also is dismissed.

c. The Privacy and Unreasonable Search and Seizure Claims

We turn now to the central question raised by all plaintiffs: whether requiring TA employees or prospective employees *fn22 to submit to urinalysis testing for narcotics use is an unreasonable search or seizure under the fourth amendment of the United States Constitution or article I section 12 of the New York State Constitution. Search-and-seizure analysis begins with a determination as to whether there was an actual search or seizure by the government. If so Court then must balance the government's interests with that of the private party to determine if the search or seizure was reasonable.

We note initially without determining the issue that this court has certain reservations as to whether mere production of a urine specimen if done in conjunction with a routine medical exam or pre-employment physical constitutes a search or seizure since a urine sample typically is required in order to check for numerous medical problems such as diabetes. We recognize that there is considerable precedent to the contrary but that precedent is outside this circuit.

Nor in measuring the reasonableness of the purported search and/or seizure do we view the test as intrusive in the sense of an intrusion into the body as is necessary for a blood test because urine is a waste product that a person discharges periodically in any event. Again we recognize that there is certain precedent outside this circuit to the contrary; but as will be noted infra there is a divergence of views on this point.

Plaintiffs contend that the TA testing procedures: (1) make production of the urine sample compulsory and therefore involuntary; (2) require the urine sample to test specifically for the presence of marijuana and not for other medical problems; and (3) require the samples to be produced in the presence of an observer thus greatly intruding upon an individual's privacy.

Federal Cases

Neither the Supreme Court nor the Second Circuit has considered a case directly on point. *fn23 Both sides rely on Second Circuit cases that concededly have some presidential effect but they are not dispositive.

The plaintiffs argue that Security and Law Enforcement Employees Dist. Council 82 v. Carey 737 F.2d 187 (2d Cir. 1984) supports their position. In that case the majority held that a reasonable suspicion standard governs strip searches of correction officers id. at 204 noting expressly that warrantless strip searches did not per se violate the fourth and fourteenth amendment rights of the officers. Id. at 203. Court did conclude however that warrantless visual body cavity searches and a random search policy did violate those rights. Id. at 208-09. The case obviously makes a distinction between the degree of personal intrusion as well as the basis for making the search. A vigorous dissent argued that because of the dangerous nature of prison work the only limitation on strip searches should be that they not be conducted arbitrarily. Id. at 211-13 (Van Graafeiland J. dissenting).

Defendants rely upon Mack v. United States 814 F.2d 120 (2d Cir. 1987). The plaintiff was dismissed as an FBI agent due to alleged cocaine use and lack of candor regarding that use. Id. at 122. He voluntarily submitted to a urinalysis but in his court action challenged its use. The trial court found that assuming a urinalysis amounts to a search of constitutional dimensions it was not unreasonable in light of all the circumstances (minimally intrusive diminished expectation of privacy as an FBI agent and compelling governmental interests). Id. The appeals court held that in light of plaintiff's consent to urinalysis testing there was no need to consider the more complex aspects of the fourth amendment issue and affirmed on those grounds. Id. at 125. Consequently only the district court opinion which is not controlling on this court supports the defendants' position.

Numerous other courts have considered the fourth amendment implications of drug testing. *fn24 In addition it has been the subject of various written and oral debates. *fn25

Generally it appears that the great majority of pre-1987 cases considering the issue particularly those at the district-court level found random testing to be unconstitutional. This line of authority is perhaps best typified by the sweeping language embodied in Capua v. City of Plainfield 643 F. Supp. 1507 (D.N.J. 1986) which found urinalysis to be highly intrusive id. at 1514 and unconstitutional unless motivated by individualized reasonable suspicion. Id. at 1516. These decisions generally were hailed by the media and academics as praiseworthy expansions of civil liberties. This reaction may be simplistic. What is a liberty to one may be a license to another. Put differently one person's freedom may be another's burden. *fn26

To the limited extent that these earlier cases supported testing as constitutional exceptions based on occupational hazards public safety or government regulation of the industry were cited. See e.g. Allen v. City of Marietta 601 F. Supp. 482 491 (N.D. Ga. 1985) (involving employees working with high-voltage electrical wires); Division 241 Amalgamated Transit Union v. Suscy 538 F.2d 1264 1267 (7th Cir.) cert. denied 429 U.S. 1029 50 L. Ed. 2d 632 97 S. Ct. 653 (1976) (involving bus and train operators); Shoemaker v. Handel 795 F.2d 1136 1141-42 (3d Cir.) cert. denied 479 U.S. 986 107 S. Ct. 577 93 L. Ed. 2d 580 (1986) (involving jockeys in horse racing a highly regulated industry).

At least two recent appellate decisions upholding testing however proceeded from far different conclusions. The Eighth Circuit in upholding random testing of prison employees having regular daily contact with prisoners concluded that urinalysis is less intrusive than strip searches or a blood test. McDonell v. Hunter 809 F.2d 1302 1308 (8th Cir. 1987) rev'g 612 F. Supp. 1122 (S.D. Iowa 1985). The Fifth Circuit reached a similar conclusion in National Treasury Employees Union v. Von Raab 816 F.2d 170 177 (5th Cir. 1987) rev'g 649 F. Supp. 380 (E.D. La. 1986) a case involving the testing of certain Customs Service employees. (It should be noted that the program there unlike the one in issue in this case called for supervised urine collection but not visual observation.) The Supreme Court in an 8-1 ruling refused to stay the 5th Circuit decision 482 U.S. 902 107 S. Ct. 2479 96 L. Ed. 2d 372 (1987) and has denied expedited consideration of petitioner's motion for certiorari. 482 U.S. 912 107 S. Ct. 3182 96 L. Ed. 2d 671.

This court does not view the current state of Federal law on this question to be so settled as to make summary judgment and certainly not dismissal appropriate at this stage. Accordingly the various motions on the fourth amendment claims are denied.

Inextricably bound up with the question of fourth amendment reasonableness are considerations of privacy. Certain plaintiffs also assert privacy claims as separate independent causes of action. In that vein a recent Second Circuit case may have some application. See Chalfy v. Turoff 804 F.2d 20 23 (2d Cir. 1986) (per curiam) (discussing privacy implications of limousine licensing requirements). Of course whether there is a "right to privacy" per se under the Constitution is a much-debated question. The word "privacy" appears nowhere in that historic document. The Bill of Rights however protects certain aspects of privacy such as the right to be secure in one's home. During the years when Earl Warren served as Chief Justice a number of Supreme Court decisions expanded upon the notion that the Constitution contains an implied "right of privacy." This expansive reading of the Constitution seems to be ebbing under the current Supreme Court. See Bowers v. Hardwick 478 U.S. 186 106 S. Ct. 2841 2843-44 92 L. Ed. 2d 140 (1986) (suggesting privacy rights largely limited to family matters). *fn27 In any event we do not believe this issue is ripe for disposition at this time.

State Cases

The plaintiffs rely heavily upon the recent New York Court of Appeals opinion in Patchogue-Medford Congress of Teachers v. Board of Education 70 N.Y.2d 57 517 N.Y.S.2d 456 510 N.E.2d 325 (1987) which held that requiring probationary teachers to submit to urinalysis to detect potential drug abuse constituted an illegal search and seizure in violation of the teachers' constitutional rights. There had already been an existing drug detection system in that school district pursuant to a collective bargaining agreement. However the school district added an additional examination for probationary teachers before granting them tenure. It was clear that the sole purpose of the urine test was to detect drug usage. The New York Court first considered the Federal constitutional standards noted that the Supreme Court had not passed on the issue and observed that the lower Federal courts had reached diverse conclusions. Id. 517 N.Y.S.2d at 459. It concluded that a majority of the courts had held that urine testing required by governmental bodies involves a search and seizure and that reasonable suspicion is required to justify the tests under Federal constitutional standards. Id. Court moved on however to note that since the case involved expectations of privacy of State employees it was appropriate to resolve it under both the Federal and State constitutions. Id. It concluded that the testing satisfied neither. Id. 517 N.Y.S.2d at 462. *fn28

Court of Appeals focused on the school district's argument that they had the right to compel urine tests at will. It noted that "although [urine] is a waste product it is not generally eliminated in public or in such a way that the public or government officials can gain access to it in order to 'read' its contents." Id. 517 N.Y.S.2d at 460. Court upheld an individual's privacy interest in how he or she disposes of this waste product. Moreover although unlike the physical intrusion of a blood test Court found compelled production of urine intrusive because "the act of discharging urine is a private indeed intimate one and the product may contain revealing information concerning an individual's personal life and habits for those capable of analyzing it." Id. 517 N.Y.S.2d at 461. Under these circumstances the State Court concluded that the urine tests constituted a search and seizure.

In analyzing the reasonableness of that search and seizure the Court found that probable cause and a warrant were not necessary but that reasonable suspicion was required in order for the school district to compel urine testing for drug abuse. Id. 517 N.Y.S.2d at 461-62. The school district argued that it was nevertheless permissible to test all employees in a particular category without reasonable suspicion. Court rejected this argument comparing it to the police checking for drunk drivers by stopping all cars at fixed points. The police may only inquire as to sobriety the Court noted and can only require a test when indicia of intoxication leading to reasonable suspicion are present. Id. 517 N.Y.S.2d at 462. Court noted that the district had made "'no attempt to justify the demand for a sample upon any ground supporting the need for such testing either as to the prospective tenured teachers as a class or to any of them individually.'" Id. 517 N.Y.S.2d at 458 (quoting trial court decision).

For our purposes the critical portion of the decision concludes:

Random searches conducted by the State without reasonable suspicion are closely scrutinized and generally only permitted when the privacy interests implicated are minimal the government's interest is substantial and safeguards are provided to insure that the individual's reasonable expectation of privacy is not subjected to unregulated discretion. . . . In this case those requirements have not been satisfied.

Id. 517 N.Y.S.2d at 462 (citation omitted). The decision therefore leaves open the possibility that random tests could be permitted if the government's interests are substantial and the employees' reasonable expectation of privacy is not subjected to unregulated discretion.

The plaintiffs claim that urinalysis testing absent particularized suspicion of marijuana use is always unreasonable. They contend that since urinalysis tests do not establish whether an employee's job performance is impaired the tests bear no rational relationship to the TA's stated interest in public safety. We cannot fully agree with the plaintiffs' contentions.

In this case we are dealing with what seems to this Court to be a stronger governmental interest than that at issue in Patchogue-Medford. There the State had a legitimate interest in seeing that employees were fit to teach and that their performance was not impaired by drug use. This is obviously important in the context of protecting school children from exposure to teachers who may be using drugs. Here however most of New York City's population may be exposed to the risk of physical harm if job performance is impaired due to illegal drug use. Consequently in appropriate circumstances this governmental interest may override the employee's interest in privacy even if the latter is more than "minimal."

Millions of New Yorkers use mass transit daily not to mention pedestrians and motorists who also are jeopardized if surface transit is not operated safely. Urinalysis testing to uncover drug use by employees or applicants in safety-related positions does not seem unreasonable per se provided safeguards such as those mentioned in Patchogue-Medford are established to see that any personal intrusion is no greater than necessary to accommodate the defendants' legitimate interest in public safety.

The plaintiffs contend in any event that there is no demonstrated need for testing since only about 2 % of those tested have shown positive results. The plaintiffs note that even this small percent may be overstated because of the possibility of "false positive" results and other inaccuracies in the testing process. Even a small percentage of positive test results raises reasonable concerns at least to the extent of employees whose jobs could endanger the public. Moreover when employees know in advance that they will or may be subject to drug testing they have an opportunity to refrain from use prior to such tests so that actual usage may be greater.

The defendants argue that if urinalysis testing is viewed as a search it is nevertheless reasonable because public employees have a diminished expectation of privacy with respect to their fitness for employment and the TA has an overriding interest in public safety. The defendants also note a legitimate concern about their employees' "turpitude" and poor judgment in using illegal drugs. (However the defendants apparently do not pursue criminal investigation of any employee who tests positive for drug/marijuana use.) Similar considerations however were factored into the Patchogue-Medford decision.

The defendants further note that a public employer's reasonable conditions of employment are entitled to a presumption of validity. As public employees the plaintiffs' reasonable expectation of privacy with respect to their fitness for employment may be reduced. Assuming a privacy interest exists however it is not totally abrogated by virtue of public employment. Indeed it is the fact that the employer is a governmental body which supports the fourth amendment claim. But see supra note 9 (discussing changing case law regarding restrictions on government as employer).

The significant differences between the cases at bar and Patchogue-Medford along with the important factual matters that remain to be resolved render a dispositive motion on State constitutional grounds inappropriate at this time. *fn29

Before leaving the search-and-seizure issue we note the following general observations. Even assuming that the present testing program has some constitutional infirmities the extent of relief to which the plaintiffs would be entitled cannot be determined upon these motions papers. The plaintiffs are public employees serving the public interest in a matter involving the public's safety. As such it is hard to envision them as having greater rights than do private parties in closely regulated industries. The plaintiffs argue that the transit system is not a closely regulated industry. At one time the subways in New York were privately owned but were closely regulated. They now are a State agency involved in an occupation directly concerned with public safety. It would seem that compliance with the laws against illegal drug use should be more rigorous if anything for TA employees than for those in privately owned but closely regulated industries. *fn30

The Supreme Court recently held that owners of highly regulated businesses have an attenuated expectation of privacy and where these interests are weakened and the government's interest concomitantly heightened a warrantless inspection meeting certain criteria is reasonable under the fourth amendment. New York v. Burger 482 U.S. 691 107 S. Ct. 2636 2642-44 96 L. Ed. 2d 601 (1987). Moreover Court also recently re-emphasized that in determining the appropriate standard for a search conducted by a public employer in areas in which an employee has a reasonable expectation of privacy the reasonableness of the search depends upon the context within which it takes place and requires a balancing of the employee's legitimate expectation of privacy against the government's need for supervision control and efficient operation. O'Connor v. Ortega 480 U.S. 709 107 S. Ct. 1492 1499 94 L. Ed. 2d 714 (1987). As Justice Scalia noted in his concurring opinion to this plurality decision warrant and probable cause requirements are impractical when dealing with government employees. Id. at 1506.

The parties to the instant actions have pursued rather rigid analyses of the competing interests. This of course follows the approaches taken by certain courts in several of the cases cited supra. It may be that a more balanced approach requires making a distinction between criminal searches and facilitative searches. See supra note 9 (discussing growing case law on distinction between government as law enforcer and as employer).

In considering the distinction between criminal searches and facilitative searches one writer has commented as follows:

In a criminal search a law-enforcement official generally must have probable cause to believe that a search of a specific person or area will produce evidence of a crime. The official searches primarily for that reason -- not to deter violations generally nor to help ensure overall compliance with the law.

But when fire marshals inspect a building or safety inspectors examine a workplace they usually do not act because they have probable cause to believe there is a specific violation. Rather the principal justification for the search is to help obtain general compliance with the law by placing potential violators on notice that their transgressions will not go undetected. Uncovering specific violations is secondary in facilitative searches and often leads to assistance in correcting problems rather than to punishment.

The Supreme Court repeatedly has sanctioned such facilitative searches even in the absence of probable cause to believe (or reasonable suspicion) that a specific violation has occurred. Although a warrant may be required Court has held that such a warrant does not require probable cause that a specific violation has occurred but 'probable cause' simply in the sense of a showing that the proposed search complies with a reasonable administrative plan based on neutral criteria.

Thus governmental testing can be constitutional even if the urinalyses are intrusive and even in the absence of reasonable suspicion if the government first seeks a warrant by showing a reasonable need for such searches and uses a plan that does not unfairly discriminate. As the Supreme Court put it such a process provides assurances from a neutral officer that the search is reasonable and is based on fair and neutral criteria.

In the case of drug testing these criteria might include the sensitivity of the job the incidence of drug use in a worker population based on past testing of the same or similar groups the length of time since the last test and other similar factors.

Banzhaf How to Make Drug Tests Pass Muster Nat'l L.J. Jan. 12 1987 at 13 & 24 (footnotes omitted).

The above may offer a sensible compromise for the competing interests involved but it is too early to pass judgment without a trial of the issues of fact. As Court Glasser held in Railroad Labor Exec. Assoc. v. Long Island R.R. Co. 651 F. Supp. 1284 1286 (E.D.N.Y. 1987):

The Railroad's alternative position -- that the search and seizure is nonetheless reasonable -- is not ripe for decision. . . .

Court cannot perform the balancing test on the present state of the record. For one thing the dispute over the past history of testing on the Railroad has a bearing on what is reasonable now. Additionally Court must know the nexus between drug and alcohol use by Railroad employees and danger to lives and property; the reliability of the tests used by the Railroad; the possibility that positive test results will reflect drug or alcohol use in off-duty hours that does not lead to intoxication during working hours; and the circumstances that lead the Railroad to require urine samples to be given under surveillance rather than in private. This list of factors is not meant to be exhaustive. For the reasons stated the Railroad's motion for summary judgment . . . is denied.

d. Due Process

Among the numerous issues implicated by the parties' motions *fn31 are an assortment of due process claims raised by the various plaintiffs.

First the Burka plaintiffs allege that job applicants are denied due process because they are not provided an opportunity for a hearing or appeal of the drug-testing results which de facto render them ineligible for employment. Of course due process protections apply only when a life liberty or property interest protected by the fourteenth amendment are implicated. Board of Regents v. Roth 408 U.S. 564 569 33 L. Ed. 2d 548 92 S. Ct. 2701 (1972). An interest in employment does not rise to the level of a property right until the individual has a "legitimate claim of entitlement to it." Id. at 577. Applicants for positions with the TA have no such property interest under either the Federal or State constitution. Cassidy v. Municipal Civil Serv. Comm'n 37 N.Y.2d 526 529 375 N.Y.S.2d 300 303 337 N.E.2d 752 (1975). Plaintiffs seek to patch together such an interest by alleging that N.Y. Civ. Serv. Law SEC. 50(4) (McKinney 1983) vests in "disabled" applicants a right to appeal adverse employment decisions. We already have held however that plaintiffs simply by virtue of their actual or perceived use of marijuana are not "disabled" as that term is construed under applicable provisions of New York law including section 50. Section 50 of the New York Civil Service Law therefore is inapposite and TA applicants denied employment on the basis of marijuana-positive test results have not been denied a property interest. Accordingly consistent with Roth and Cassidy that portion of plaintiffs' Federal and State due process claim is dismissed.

Next the Burka plaintiffs and Fa challenge the TA's reliance on drug-test results as violative of due process since they allege drug-testing technology is inherently imperfect. The defendants move to dismiss these claims. Holding as we do that TA job applicants are not being denied a property right cognizable under either the United States or New York constitution that part of the claim relating to job applicants is dismissed. As the charge relates to TA employees this court is far from impressed with this aspect of the due process claim. Plaintiffs do not challenge (and in essence concede) the fact that TA employees are given adequate administrative hearings and appellate rights comporting with due process. The claim apparently is that any reliance on the allegedly arbitrary and inaccurate drug-test results would so infect those proceedings as to render them unconstitutional.

The effectiveness of the tests and the availability of alternative less intrusive more effective procedures are somewhat puzzling issues. For example in Capua v. City of Plainfield 643 F. Supp. 1507 1518 (D.N.J. 1986) Court Sarokin commented that the state's interest is not impaired by having an individualized reasonable suspicion standard since one so under the influence of drugs as to impair his or her performance must manifest outward symptoms which in turn would give rise to reasonable suspicion. On the other hand the newspapers are replete with stories of Olympic athletes all-American basketball players and all-star professional football players who are exposed as drug users only after many successful years of competition.

Assuming for the moment that the tests accurately detect the presence of marijuana in a person's system (which the plaintiffs strenuously contest) they do not it is true measure the level of use or impairment at the time of testing (as would a blood test for alcohol consumption). On the other hand the long-term effects of marijuana are not definitively known. Helen Jones and Paul Lovinger authors of The Marijuana Question (1985) argue that marijuana use disqualifies one from a position of responsibility in safety-related matters since although the intoxication usually lasts only a few hours the impairment does not end with intoxication. They contend that intoxication can return without further smoking at substantially later periods and in their opinion this has been responsible for some transportation accidents. Jones & Lovinger Marijuana Doesn't Mix with Rail Safety N.Y. Times Jan. 28 1987 at A26 col. 4 (letters to the editor). This along with the questions raised concerning the reliability of the testing produces factual issues rendering the parties' motions addressed to the employee's due process challenge based on the inaccuracy of testing inappropriate at this time.

Finally the Burka plaintiffs claim denial of a liberty interest -- reputation -- without due process in that they are stigmatized by the TA as "drug abusers." Reputation claims under both the United States and New York constitutions must allege publication of the allegedly defamatory material. Bishop v. Wood 426 U.S. 341 348 48 L. Ed. 2d 684 96 S. Ct. 2074 (1976); Lentlie v. Egan 61 N.Y.2d 874 875-76 474 N.Y.S.2d 467 468 462 N.E.2d 1185 (1984). As defendants accurately point out the mere fact that the TA is aware of the drug-test results "does not establish that such information was publicly disseminated. . . ." Lentlie 61 N.Y.2d at 876 474 N.Y.S.2d at 468. There is no such allegation. Consequently that claim is dismissed. Plaintiffs are given twenty days to replead if consistent with Fed. R. Civ. P. 11 a more specific allegation can be made and supported.

e. The TWU's Fifth Amendment Claim

The TWU claims that by deeming a refusal to submit to drug testing as an admission of drug use the TA policy violates the fifth amendment's dictate that "no person . . . shall be compelled in any criminal case to be a witness against himself. . . ." U.S. Const. Amend. V. Among other deficiencies in this claim the fifth amendment protects only "testimonial communication that is incriminating." Fisher v. United States 425 U.S. 391 408 48 L. Ed. 2d 39 96 S. Ct. 1569 (1976) (emphasis in original). We find that the results that would be obtained by drug testing whether or not compelled do not constitute testimonial evidence as that term is construed under the fifth amendment. Cf. Schmerber v. California 384 U.S. 757 760-65 16 L. Ed. 2d 908 86 S. Ct. 1826 (1966) (holding blood sample does not constitute compelled testimony).

Plaintiffs place great reliance on Justice Collins' decision in National Treasury Employees Union v. Von Raab 649 F. Supp. 380 (E.D. La. 1986) which distinguished Schmerber and held that urinalysis does violate the fifth amendment's privilege against self-incrimination. Id. at 388. The Fifth Circuit however consistent with our holding today and expressly relying on Schmerber has since reversed Justice Collins on that point. National Treasury Employees Union v. Von Raab 816 F.2d 170 181 (5th Cir. 1987).

Further even if urinalysis results could somehow be construed as compelled testimony within the ambit of the fifth amendment the results in this case would not be obtained as part of a criminal investigation nor do plaintiffs make any allegation that the results would be so used. This fact further erodes the foundation for the TWU's challenge. See McCarthy v. Arndstein 266 U.S. 34 40 69 L. Ed. 158 45 S. Ct. 16 (1924) (noting fifth amendment implicated only if testimony likely to involve criminal sanctions).

For these reasons the TWU's fifth amendment challenge is dismissed.

f. Fa's Collateral Estoppel Claim

Plaintiff Fa seeks summary judgment on his claim that the determination by an administrative law Court awarding Fa unemployment benefits partly on the basis of Fa's "credible and consistent testimony" denying marijuana use collaterally estopped the TA from "re-litigating" the drug issue during Fa's disciplinary proceedings.

If collateral estoppel were to apply in this context Court would have to make a determination as to the nature of the unemployment proceeding (i.e. whether it was adversarial and whether the parties were represented by Counsel) and whether the drug issue received a full hearing. Hill v. Coca Cola Bottling Co. of New York 786 F.2d 550 552 (2d Cir. 1986). Those considerations present factual issues that render Fa's motion premature. We might add however that we are not so sure based on a cursory reading of applicable law that this claim can survive an appropriate motion for summary judgment by defendants. We of course reserve decision on that issue until the appropriate time.

g. Intervenor Salazar's Substantial Evidence Challenge

Intervenor Salazar seeks summary judgment on his specific challenge to the "substantial evidence" standard used by the TA trial board in sustaining adverse employment action taken on the basis of positive urinalysis results. Salazar claims that the TA's use of a "substantial evidence" standard violated N.Y. Civ. Serv. Law SEC. 75 (McKinney 1983) which he maintains requires use of a "preponderance of the evidence" standard in that context. He further contends that this alleged violation ran afoul of the due process requirements of the United States and New York constitutions.

The standard applied cannot be evaluated except within the context of the hearing itself. Like Fa's collateral estoppel claim this presents factual determinations that make the claim unsuitable at this time for summary judgment. Accordingly Salazar's motion is denied.

CONCLUSION

Defendants had requested that we decline to exercise pendent jurisdiction and dismiss all State claims. There is a substantial Federal claim in this case (fourth amendment) however and all claims "derive from a common nucleus of operative fact." United Mine Workers v. Gibbs 383 U.S. 715 725 16 L. Ed. 2d 218 86 S. Ct. 1130 (1966). Consistent with Gibbs and sound principles of judicial economy we choose to exercise pendent jurisdiction over the asserted State claims.

In that context and for the reasons articulated above all plaintiffs' motions for summary judgment are denied and all claims Federal and State are dismissed with the exception of:

(1) those claims asserting search-and-seizure violations under the fourth amendment of the United States Constitution and article 1 section 12 of the New York Constitution;

(2) those claims asserting a violation of privacy rights under the Federal or State Constitution;

(3) the Federal or State due process claims of employees only (and not job applicants) and of those claims only those relating to the inaccuracy and inherent unfairness of drug testing;

(4) Fa's collateral estoppel claim; and

(5) Salazar's substantial evidence claim. All other claims are dismissed with prejudice excepting the due process claim relating to reputation. Plaintiffs are allowed twenty days to replead that issue if a cognizable Federal claim can be asserted (bearing in mind the requirements and sanctions of Rule 11).

As one commentator has observed: "The legal issues concerning substance abuse in the workplace are for the most part largely unsettled and thus are not subject to the application of clearly defined legal precedents." Baer Labor Relations: Substance Abuse N.Y.L.J. June 5 1987 at 1 Col. 1. Of Course more definitive rulings from the United States Supreme Court or the Second Circuit Court of Appeals could clarify the situation. Otherwise this case will clearly require an extensive evidentiary hearing. Indeed it may prove appropriate to refer the matter to a Special Master for the development of an evidentiary record since in light of the requirements of the Speedy Criminal Trial Act insufficient time is available for such lengthy civil proceedings.

SO ORDERED.

GERARD L. GOETTEL U.S.D.J.