Opinion
Civil Action No. 02-CV-6630.
June 18, 2004
MEMORANDUM AND ORDER
In this action brought under 42 U.S.C. § 1983, a former employee of a public housing agency claims that he was deprived of his property right in his employment when he was placed on an unpaid leave of absence without notice and a hearing in violation of his due process rights under the Fourteenth Amendment. The defendants assert that the plaintiff, a union member, should not be permitted to bypass the grievance procedure prescribed in the controlling collective bargaining agreement, which satisfied due process. Thus, we must decide whether the plaintiff's employer afforded him due process to challenge the job action placing him on unpaid leave while the employer, the district attorney and the police investigated allegations that he had covered up his involvement in a drug transaction by wrongfully identifying an innocent man as having shot him.
The parties have filed cross motions for summary judgment. Although the parties disagree whether the plaintiff lied about who shot him and the circumstances surrounding the shooting, they do agree on the facts essential to the disposition of the motions. Transcript of Oral Argument ("Tr.") at 4 (March 23, 2004).
Summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). The defendants, in their motion for summary judgment, (Docket No. 32), accept the plaintiff's statement of undisputed facts included in his motion for summary judgment. (Docket No. 30). Pl. Mot. for. Summ. J. at 3-10; Def. PHA Mot. for Summ. J. at 3 n. 2. Facts which could alter the outcome are material and disputes are genuine "if evidence exists from which a rational person could conclude that the position of the person with the burden of proof on the disputed issue is correct." Ideal Dairy Farms, Inc. v. John Lebatt, Ltd., 90 F.3d 737, 743 (3d Cir. 1996). In considering the cross motions, we have relied on the plaintiff's statement of undisputed facts, which we accept as true and view together with all reasonable inferences in the light most favorable to him. InterVest, Inc. v. Bloomberg, L.P., 340 F.3d 144, 159-60 (3d Cir. 2003). An inference based upon speculation or conjecture does not create a material fact. Robertson v. Allied Signal, Inc., 914 F.2d 360, 382 n. 12 (3d Cir. 1990). The nonmovant must show more than the "mere existence of a scintilla of evidence" for elements on which he bears the burden of production. Anderson, 477 U.S. at 252. Thus, "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Procedural History
The plaintiff's initial complaint contained eight counts alleging various claims against numerous defendants. The original claims were for racial discrimination under Title VII, 42 U.S.C. § 1981, and the Pennsylvania Human Relations Act; three claims under 42 U.S.C. § 1983; a deprivation of contract claim under 42 U.S.C. § 1985; and, a conspiracy claim under 42 U.S.C. § 1986. Compl. (Docket No. 1). Named as defendants were the Philadelphia Housing Authority ("PHA"); its director, Carl Greene; the PHA Police Department; Richard Zappile, PHA's Chief of Housing Police; Daniel Rosenstein, a commander in the PHA Police Department; PHA's unnamed Director of Human Resources; John Verrechio and Edward Hughes, the two Philadelphia Police Department detectives who investigated the circumstances surrounding the plaintiff's shooting and his alleged involvement in a drug deal; and, Thomas Malone, the Assistant District Attorney who accused the plaintiff of having perjured himself at a preliminary hearing when he accused the wrong man as having shot him. Id.
Count IV was a redundant claim for racial discrimination, Count V was for a Fourteenth Amendment due process violation and Count VIII was for First Amendment retaliation.
The first amended complaint, filed on January 16, 2003, no longer named Carl Greene, the Philadelphia Housing Authority Police Department and the unnamed Director of Human Resources. Am. Compl. (Docket No. 7). Thomas Malone was dismissed by order entered on February 25, 2003. (Docket No. 18). By stipulation entered on March 17, 2003, all claims against John Verrechio were dismissed. (Docket No. 21). A later stipulation dismissed Counts I, II, IV and VIII of the complaint and all claims against defendants Edward Hughes, Daniel Rosenstein and Richard Zappile. (Docket No. 26).
The plaintiff was granted leave to file a second amended complaint, which was filed on September 9, 2003, (Docket No. 35), adding defendant Marc Woolley, PHA's General Manager of Human Resources, and previously dismissed defendant Richard Zappile. The plaintiff alleged that Woolley and Zappile were jointly responsible for deciding not to allow him to return him to work.
The plaintiff's claims have been whittled down from eight counts to a single count, and the number of defendants has been reduced from nine to three. The plaintiff no longer challenges the grounds for his firing. Nor does he assert racial discrimination in the promotional policy, nor retaliation for filing a complaint with the Equal Employment Opportunity Commission. The only remaining claim is for denial of procedural due process when PHA placed the plaintiff on unpaid medical leave without pre-suspension notice or a hearing. Tr. at 2-4. The challenged job action relates only to the short period when he was on unpaid medical leave. Remaining as defendants are PHA, Solomon's employer; Richard Zappile, PHA's Chief of Housing Police who placed Solomon on leave and later fired him; and, Marc Woolley, the ex-director of PHA's Human Resources who concurred with Zappile's decisions and authorized them.
At oral argument held on March 23, 2004, the plaintiff acknowledged that he was pursuing only this claim. Tr. at 3.
Background
The plaintiff, Ronald Solomon, Jr. ("Solomon"), began working for PHA as a police officer in 1997. On September 21, 2000, while off-duty, he was shot in the arm and head. Pl. Mot. for Summ. J. at 3. During the course of its investigation into the shooting, the Philadelphia District Attorney's Office discovered evidence that raised concerns that Solomon, to cover up his own involvement in a drug deal, had intentionally accused an innocent man as his assailant and later perjured himself when he testified against him at a criminal preliminary hearing. Pl. Mot. for Summ. J. at 6.
At his deposition, the plaintiff stated that he "believes" he started working at PHA in 1997. Solomon Dep. at 16 ( Pl. Mot. for Summ. J. Ex. A). The defendants accept the plaintiff's deposition testimony in determining his start date. However, in the plaintiff's amended complaint and his motion for summary judgment, he states that he started working at PHA on September 18, 1995. This discrepancy is immaterial to our determination.
The parties continue to dispute the circumstances surrounding the shooting and the identity of the shooter. However, this factual dispute is irrelevant to our consideration of whether PHA denied Solomon procedural due process when it did not return him to active duty in February 2001.
The first ten pages of Plaintiff's Motion for Partial Summary Judgment (Docket No. 30) is the plaintiff's statement of undisputed facts, though not in individually numbered paragraphs. PHA's statement of undisputed facts in its motion for summary judgment (Docket Nos. 31 and 32) largely relies on the plaintiff's recitation of the facts. Therefore, we shall cite to the plaintiff's motion for facts not in dispute.
On October 4, 2000, Solomon testified at the preliminary hearing of Harry Dantzler ("Dantzler"), the man he had identified as his shooter. Pl. Mot. for Summ. J. at 6. Philadelphia Police later learned that Kareem Harper-El ("Harper-El"), a juvenile incarcerated at the Youth Study Center on other charges, had been telling other inmates that he had in fact shot Solomon. In a written confession, Harper-El admitted to shooting Solomon after Solomon had taken a bag of marijuana from Harper-El and had refused to pay for it. Solomon Dep. at 98-99 ( Pl. Mot. for Summ. J. Ex. A). Harper-El's confession was corroborated by the Philadelphia Police and he eventually pled guilty to shooting Solomon. Solomon Dep. at 231 ( Pl. Mot. for Summ. J. Ex. A).
Following a seven-day hospitalization, Solomon was placed on a medical leave of absence as of September 21, 2000. Pl. Mot. for Summ. J. at 7. On January 21, 2001, Solomon's allotted medical leave expired. Pl. Mot. for Summ. J. at 7. In early February 2001, PHA notified Solomon that unless he obtained medical clearance to return to work by February 9, 2001, he would be terminated. Pl. Mot. for Summ. J. at 7. On February 7, 2001, Solomon misled his physician into clearing him to return to work. Id.; Tr. at 7. PHA then declined to return him to active duty pending the outcome of the criminal investigation into the shooting because Solomon's ability to perform his job as a police officer was compromised by the ongoing investigation. Pl. Mot. for Summ. J. at 8. Instead, PHA placed Solomon on extended unpaid medical leave during which time he accrued benefits. Pl. Mot. for Summ. J. at 9. Solomon knew that he was not being returned to work because the Philadelphia Police and PHA were conducting an investigation into his alleged criminal wrongdoing. Tr. at 13-15; Solomon Dep. at 171 ( Pl. Mot. for Summ. J. Ex. A). Though he consulted his union and his lawyer when he was advised he could not return to work, Solomon did not file a grievance at that time. Tr. at 13-15; Solomon Dep. at 173 ( Pl. Mot. for Summ. J. Ex. A)
Solomon was carried on medical leave until November 1, 2001, when PHA notified him that he was suspended as of that date with the intent to terminate his employment permanently. Pl. Mot. for. Summ. J. at 9. In support of this employment decision, PHA cited Solomon's failure to cooperate with the criminal investigation, his false statements made during the criminal investigation, his possession of illegal drugs, and the improper use or display of his firearm. Philadelphia Housing Authority Notice of Suspension, October 4, 2002 ( Pl. Mot. for Summ. J. Ex. C-7).
On November 5, 2001, Solomon's union, the Fraternal Order of Housing Police, filed a grievance protesting the termination in accordance with the terms of the collective bargaining agreement. Pl. Mot. Summ. J. at 9. The grievance proceeded through four steps prescribed in the agreement. Id. Solomon's claim was denied at each step. Id. He declined to pursue binding arbitration, the final step of the grievance process. Solomon Dep. at 228-30 ( Pl. Mot. for Summ. J. Ex. A).
The grievance procedure Solomon utilized in November 2001 to challenge his termination had been available to him in February 2001 to protest his employer's continuing his leave without pay instead of allowing him to return to his job. Solomon did not file a grievance in February 2001 after PHA notified him that he was not being returned to active duty. Solomon Dep. at 171-72, 344, 349-350 ( Pl. Mot. for Summ. J. Ex. A). He does not allege that the grievance procedure in the collective bargaining agreement is inherently flawed or is incapable of providing members with due process. Rather, to excuse his ignoring the mandated dispute process, Solomon argues that it was unavailable to him because he had not been told why he had not been returned to work.
Procedural Due Process
To establish a section 1983 claim based on the Fourteenth Amendment, a plaintiff must prove that he was deprived of a property interest under color of state law without due process. Dykes v. Southeastern Pa. Transp. Auth., 68 F.3d 1564, 1570 (3d Cir. 1995). The defendants do not contest that the collective bargaining agreement created a property interest in Solomon's employment. See Buttitta v. City of Chicago, 9 F.3d 1198, 1202 (7th Cir. 1993). Nor is there any dispute regarding PHA's status as a public employer. Thus, the sole issue is whether due process was available to Solomon when PHA declined to return him to work in February 2001 and instead put him on unpaid leave pending the outcome of the criminal investigation.
"If there is a process on the books that appears to provide due process, the plaintiff cannot skip that process and use the federal courts as a means to get back what he wants." Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000). Consequently, a plaintiff cannot claim denial of due process unless he took advantage of the processes available to him or was prevented from doing so. In fact, Solomon agrees that if the procedure dictated by the collective bargaining agreement satisfies due process, PHA is entitled to summary judgment. Tr. at 5.
The cases cited by Solomon discussing an employer's denial of procedural due process are inapplicable because in those cases, unlike this case, the employees were not covered by collective bargaining agreements which provided the requisite due process protection. See, e.g., Stana v. Sch. Dist. of the City of Pittsburgh, 775 F.2d 122 (3d Cir. 1985).
Solomon was covered by a collective bargaining agreement which set forth a typical labor dispute resolution procedure. Medical leave and disciplinary issues were subject to the grievance and arbitration provision of the agreement. Collective Bargaining Agreement between PHA and Fraternal Order of Housing Police ("Agreement") Arts. 9, 38, 58 ( Def. Philadelphia Housing Authority's Mot. for Summ. J. Ex. F). Article Nine sets forth the grievance procedure, which involves successive appeals to higher levels of management, concluding with optional binding arbitration. Id. This same process has been held to meet the requisite due process requirements in a public employment context. Jackson v. Temple Univ., 721 F.2d 931, 933 (3d Cir. 1983) (stating that right to proceed to arbitration satisfies due process even if earlier grievance hearings were inherently biased).
To determine whether the grievance procedures in the controlling collective bargaining agreement comply with due process requirements, we must apply the three part balancing test ordained by the Supreme Court in Matthews v. Eldridge. Dykes, 68 F.3d at 1571-72 (quoting Matthews v. Eldridge, 424 U.S. 319, 335 (1976)). First, we must consider the employee's interest that would be affected by the official action. Dykes, 68 F.3d at 1572 (quoting Matthews, 424 U.S. at 335). Second, we assess the risk of an erroneous deprivation through the grievance and arbitration process, and weigh the potential value of additional or substitute procedural safeguards. Id. Third, we take into account the governmental interest. Id.
Weighing the Matthews factors, we find that the grievance and arbitration process that was available to Solomon satisfies due process. An employee's interest in keeping his job is substantial. Dykes, 68 F.3d at 1572 (citing Armstrong v. Meyers, 964 F.2d 948, 950 (9th Cir. 1992)). The risk of an erroneous determination in grievance proceedings mandated by a collective bargaining agreement is minimal. Id. Because there is a significant governmental interest in resolving employment disputes without having to resort to litigation, grievance and arbitration procedures are a widely accepted method of dispute resolution. Id; see also Nat'l Ass'n of Letter Carriers, AFL-CIO v. United States Postal Serv., 272 F.3d 182, 185 (3d Cir. 2001); United Parcel Serv., Inc. v. Int'l Brotherhood of Teamsters, Chauffeurs, Warehousemen Helpers of Am., Local Union No. 430, 55 F.3d 138, 141 (3d Cir. 1995).
Solomon does not challenge the grievance and arbitration provisions as constitutionally deficient. Tr. at 16-17. Instead, he now suggests that his access to the grievance procedure had been blocked and that he was forever prohibited from pursuing a complaint under the agreement because he did not learn why PHA had refused to return him to work until it was too late to file a grievance. Tr. at 22-23. He argues that the employer's failure to give a reason for the adverse employment action constitutes a lack of notice. Tr. at 20, 23.
Even where there is a procedure available, due process may be deprived "when access to procedure is absolutely blocked. . . ." Alvin, 227 F.3d at 118. In the absence of concrete evidence that the procedure or hearing would have been conducted unfairly or partially, the plaintiff cannot avoid it. Id. at 118-19.
There is no evidence, let alone "concrete" evidence, that Solomon was "absolutely blocked" from utilizing the grievance and arbitration procedures. Id. at 118. He offers no evidence nor can we find any in the record to support his claim that the defendants prevented access to the due process procedures.
The movants bears the initial burden of demonstrating that there are no issues of material fact. FED. R. CIV. P. 56(c). Once the movant has presented this evidence, the burden shifts to the nonmovant to come forward with affirmative evidence that genuine issues of material fact exist for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). The nonmovant cannot rely on the allegations in the complaint, but must set forth specific facts. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).
In February 2001, Solomon knew that he was not being returned to work. Tr. at 18-22. The union had notified him that he had been placed on medical leave without pay, an issue covered by Article 38 of the agreement. Solomon Dep. at 176 ( Pl. Mot. for Summ. J. Ex. A). Solomon cannot deny that he knew he had a basis to question PHA's job action. Solomon Dep. at 171-72 ( Pl. Mot. for Summ. J. Ex. A). Indeed, when he was notified that he was not being returned to work and was not being paid while on leave, Solomon unsuccessfully requested that his union grieve PHA's decision. Tr. at 18-19; Solomon Dep. at 176 ( Pl. Mot. for Summ. J. Ex. A). Solomon was aware that he could have filed a grievance himself. Solomon Dep. at 202-04 ( Pl. Mot. for Summ. J. Ex. A). He simply chose not to pursue the matter at that time.
Solomon has not raised an unfair representation claim against his union.
Solomon's contention that he was blocked from pursuing the grievance procedure because he did not know exactly why he was not being returned to active duty is untenable in light of the undisputed facts. Tr. at 18-19. It was not the reason for the job action which triggered the process. It was the event itself — placing him on unpaid leave — that gave rise to a dispute subject to the grievance provision. The absence of a reason was the equivalent of a lack of just cause. It was a decision Solomon knew he could have challenged immediately by filing a grievance.
Solomon also argues that it would have been futile to invoke the grievance procedure because the time limit for filing a grievance passed before he knew why PHA had taken the action. Tr. at 22-23. The undisputed facts do not support Solomon's futility argument. His conversation with his union about his being placed on leave evidences his having understood that PHA had taken an adverse employment action against him at that time. Solomon Dep. at 176 ( Pl. Mot. for Summ. J. Ex. A). When Solomon was notified that he was not being returned from leave in early February 2001, his recourse was to file, with or without the union's assistance, a grievance. Agreement Art. 9 ( Def. Philadelphia Housing Authority's Mot. for Summ. J. Ex. F). Solomon was not free to disregard the procedure in the collective bargaining agreement and instead file a federal lawsuit. Alvin, 227 F.3d at 116. Yet, he did.
Article 9 of the agreement states that an employee, either directly or through the union, has seven days from either the date of the grievable incident or the date the employee should have learned of a violation of agreement to file a claim . Agreement at 7. However, the difference between the five days claimed by Solomon and the seven day limitation actually in the agreement is immaterial to Solomon's futility argument.
Conclusion
After reviewing the motions together with all the submissions and the terms of the collective bargaining agreement, we conclude that the grievance and arbitration procedures in the collective bargaining agreement provided satisfactory due process protections and the plaintiff chose not to avail himself of them. The procedure was not an alternative dispute resolution option. It was a mandated procedure. Therefore, because the plaintiff cannot skip those procedures and instead pursue a federal action, we shall grant PHA's summary judgment motion.ORDER
AND NOW, this 18th day of June, 2004, upon consideration of the Plaintiff's Motion for Partial Summary Judgment (Docket No. 30) and the defendants' response, the Defendant Philadelphia Housing Authority's Motion for Summary Judgment (Docket No. 32) and the plaintiff's response, and the Defendants Marc Woolley and Richard Zappile's Motion for Summary Judgment (Docket No. 43) and the plaintiff's response, it is ORDERED as follows:1. The plaintiff's motion for summary judgment is DENIED;
2. The defendants motions for summary judgment are GRANTED; and,
3. JUDGMENT IS ENTERED in favor of the defendants and against the plaintiff.