Dykes v. SEPTA , 68 F.3d 1564 ( 1995 )

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
11-7-1995
Dykes v SEPTA
Precedential or Non-Precedential:
Docket 95-1032
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 95-1032
___________
JOSEPH G. DYKES,
Appellant
vs.
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY;
TRANSPORT WORKERS UNION OF PHILADELPHIA, LOCAL 234,
TRANSPORT WORKERS UNION OF AMERICA, AFL-CIO
___________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 94-cv-05478)
___________
Argued
September 12, 1995
Before: MANSMANN, SCIRICA and NYGAARD, Circuit Judges.
(Filed November 7, 1995)
___________
H. Francis deLone, Jr., Esquire (Argued)
1717 Arch Street
3754 Bell Atlantic Tower
Philadelphia, PA 19103
COUNSEL FOR APPELLANT
Nicholas J. Staffieri, Esquire (Argued)
SEPTA
Legal Department
1234 Market Street
5th Floor
Philadelphia, PA 19107-3724
COUNSEL FOR APPELLEE SEPTA
Michael L. Brodie, Esquire (Argued)
Robert W. Kosman, Esquire
Brodie & Rubinsky
924 Cherry Street
1
Suite 400
Philadelphia, PA 19107
COUNSEL FOR TRANSPORT WORKERS UNION
___________
OPINION OF THE COURT
__________
MANSMANN, Circuit Judge.
In September, 1994, bus driver Joseph G. Dykes filed
suit pursuant to 42 U.S.C. § 1983 against the Southeastern
Pennsylvania Transportation Authority ("SEPTA") and the Transport
Worker's Union of Philadelphia, AFL-CIO, Local 234 ("Local 234").
In his two-count complaint, Dykes alleged that his constitutional
rights were violated when his SEPTA supervisors asked him to
submit to body fluids testing in the absence of reasonable
suspicion and that SEPTA and Local 234 conspired to deprive him
of due process in connection with the grievance proceedings which
followed his discharge.
This appeal requires that we determine whether the
district court erred in dismissing Dykes' complaint for failure
to state a cause of action. In making this determination we
revisit and extend our opinion in Bolden v. SEPTA, 953 F.2d 807(3d Cir. 1991), to conclude that, pursuant to the collective
bargaining agreement, whether reasonable suspicion exists in a
given case is not a question of law under the Fourth Amendment,
but is instead a question of fact to be resolved during the
course of the grievance/arbitration process. We also hold that
where an adequate grievance/arbitration procedure is in place and
is followed, a plaintiff has received the due process to which he
2
is entitled under the Fourteenth Amendment. Because we conclude
that Dykes has failed to allege a constitutional violation
cognizable under 42 U.S.C. § 1983, we will affirm the orders of
the district court.
I.
The allegations set forth in the complaint are
straightforward.1 On July 13, 1993, Dykes, a bus driver employed
by SEPTA and represented by Local 234, drove a SEPTA bus along
his regular route. At some point during the trip, SEPTA
supervisors boarded the bus, ordered Dykes out of the driver's
seat, and asked that he submit to body fluids tests designed to
detect the presence of drugs and alcohol. Dykes refused to
submit to those tests, and, as a result, was fired. Following
Dykes' discharge, Local 234 pursued three levels of grievance
proceedings. At each stage, it was determined that the tests
requested were based on reasonable suspicion and Dykes' discharge
was upheld. The union did not submit the matter to arbitration.
On September 6, 1994, Dykes filed a civil complaint
consisting of two counts, both of which were based upon 42 U.S.C.
§ 1983. In Count One, Dykes alleged that SEPTA deprived "him of
1
In reviewing the grant of a motion to dismiss for
failure to state a cause of action, we apply the same standard as
did the district court, accepting the allegations of the
complaint as true and construing those allegations, in a light
most favorable to the plaintiff. Wisniewski v. Johns Manville
Corp., 759 F.2d 271, 273 (3d Cir. 1985). This standard does not
vary where the action is brought pursuant to 42 U.S.C. § 1983.
Pension Benefit Guaranty Corp. v. White Consolidated Industries,
Inc., 998 F.2d 1192 (3d Cir. 1993).
3
his Fourth Amendment Right to be free from unreasonable searches
and seizures." He explained that "[t]he supervisors who ordered
[him] to submit to a body fluids test had no reasonable basis for
suspecting that [he] was under the influence of drugs or
alcohol." Count Two of the complaint, directed at SEPTA and
Local 234, alleged that Dykes was deprived of a property interest
in his employment without due process of law as required by the
Fourteenth Amendment. Specifically, Dykes challenged the role of
SEPTA and Local 234 in the post-termination grievance
proceedings. Local 234 was said to have "allow[ed] SEPTA . . .
to get away with what [the Union] knew to be violations of
plaintiff's due process rights even though [the Union] had the
power to prevent such violations and a duty to try to do so."
Dykes also claimed that Local 234 failed to obtain and present
meaningful evidence and discouraged Dykes from presenting
evidence in his own behalf. The Union was said to have "aided
and abetted" and "acted in concert with SEPTA in effecting the
deprivation of plaintiff's due process rights."
On October 7, 1994, SEPTA filed a Motion to Dismiss
Plaintiff's Complaint pursuant to F.R.Civ.P. 12(b)(6). Local 234
filed a similar motion on November 14, 1994. By Order dated
December 19, 1994, the district court dismissed Dykes' complaint
as to SEPTA and, on December 29, 1994, entered an order
dismissing Count II of the complaint.2 This appeal followed.
2
The district court did not issue opinions explaining
the deficiencies in the complaint.
4
The sole issue before us concerns the adequacy of the
complaint. In order for a plaintiff to state a cause of action
under 42 U.S.C. § 1983, he must allege "that the defendant has
deprived him of a right secured by the `Constitution and laws' of
the United States . . . and that the defendant deprived him of
this Constitutional right `under the color of any statute,
ordinance, regulation, custom or usage of any State or
Territory'." Adickes v. S.H. Kress & Co., 398 U.S. 144. 150
(1970). We evaluate each count of Dykes' complaint with
reference to this standard.
II.
In Count One, Dykes alleged that "the actions of
defendant SEPTA . . . deprived him of his Fourth Amendment right
to be free from unreasonable searches and seizures" and that "in
denying [Dykes] his Fourth Amendment rights, defendant SEPTA - a
state agency - was acting under color of state law." In
addition, Dykes alleged that "Defendant [Local 234] is a labor
organization which . . . -- at all times relevant to this action
-- was [Dykes'] exclusive representative . . . for the purposes
of collective bargaining and pursuing grievances with respect to
the terms and conditions of . . . employment"; further, that
SEPTA had "no reasonable basis for suspecting that [he] was under
the influence of alcohol and that the proposed search which
deprived [him] of his Fourth amendment Rights [was] done in
accordance with policies or practices of SEPTA. . . ."
5
SEPTA filed a motion to dismiss, attaching a copy of
the 1992-1995 collective bargaining agreement ("CBA") made
between SEPTA and Local 2343. Article XII § 1203.I(a) of the CBA
governs when drug and alcohol testing of SEPTA personnel based
upon reasonable suspicion may be undertaken and defines what
constitutes reasonable suspicion.4 SEPTA asserts that the issue
3
Dykes argues that we may not look to the CBA in
reviewing a 12(b)(6) motion. This argument ignores our decision
in Pension Benefits Guaranty Corp. v. White Consolidated
Industries, Inc.. There, we held that
A court may consider an undisputedly
authentic document that a defendant attaches
as an exhibit to a motion to dismiss if the
plaintiff's claims are based on the document.
Otherwise, a plaintiff with a legally
deficient claim could survive a motion to
dismiss simply by failing to attach a
dispositive document upon which it relied.
998 F.2d at 1196 (citations omitted). This holding is not
inconsistent with "Rule 12(b)(6)'s requirement that a motion to
dismiss be converted to a summary judgment motion if a court
considers matter outside the pleadings . . . . When a complaint
relies on a document, however, the plaintiff obviously is on
notice of the contents of the document and the need for a chance
to refute evidence is greatly diminished." Id. at 1196-97.
Clearly, this matter falls within the rule announced in
Pension Benefit Guaranty as Dykes' complaint, while framed in
constitutional terms, grows out of an alleged violation of the
CBA.
4
The CBA, at Article XII, § 203, provides as follows:
[SEPTA] may require an employee to submit to
drug and alcohol testing on a reasonable
suspicion basis where a supervisor trained in
the detection of drug and alcohol use can
articulate and substantiate specific
behavioral performance or contemporaneous
physical indicators of probable drug or
alcohol use. [SEPTA] and the Union
understand such indicators to include such of
the following as would reasonably lead the
6
of whether reasonable suspicion exists is an issue of contract
interpretation which must be addressed pursuant to the grievance
process. Accordingly, Dykes allegedly is bound by the finding,
made in each step of the grievance process, that SEPTA acted on
reasonable suspicion in requesting that he submit to drug and
alcohol testing. The crux of these contentions is that Dykes was
not subjected to an unreasonable search and seizure within the
meaning of the Fourth Amendment or, consequently, within the
scope of section 1983.
A.
Cases interpreting the scope of the Fourth Amendment
establish that drug testing of public employees may raise search
and seizure issues. Skinner v. Railway Labor Executives' Assoc.,
489 U.S. 602 (1989); National Treasury Employees Union v. Von
Raab, 489 U.S. 656 (1989). It is equally clear that the Fourth
Amendment applies only to unreasonable searches and seizures.
Skinner, 489 U.S. at 619. What is reasonable "depends on all of
supervisor to conclude that drug or alcohol
use is a contributory factor: Behavior or
actions which differ from normal behavior or
actions under the circumstances,
inappropriate or disoriented behavior and
incidents involving serious violations of
safety or operating rules and practices.
Article XII, § 1203II(a) provides that "[f]ailure to submit to a
drug and alcohol test properly required . . . is a dischargeable
offense." The grievance procedure designed to test the
circumstances surrounding drug and alcohol testing is set forth
in Article II of the CBA. While Article XII does not refer
specifically to the grievance procedure detailed in Article II,
the parties agree that the grievance procedures applied to the
situation presented here.
7
the circumstances surrounding the search or seizure and the
nature of the search or seizure itself." Id. Courts are
required to "balance the nature and quality of the intrusion on
the individual's Fourth Amendment interests against the
importance of the governmental interests alleged to justify the
intrusion." United States v. Place, 462 U.S. 696, 703 (1983).
The Supreme Court has stated that the very fact of
individualized suspicion goes far toward making a search
reasonable where the government has a legitimate interest in
confirming the alleged violation. See Skinner, 489 U.S. at 623;
National Treasury Employees Union v. Yeutter, 918 F.2d 968, 975
(D.C. Cir. 1990).
In this case, where Dykes operated a transit bus, there
is no question that SEPTA had a legitimate interest in developing
and administering a drug and alcohol testing program. In fact,
in Transport Workers' Local 234 v. SEPTA, 884 F.2d 709 (3d Cir.
1988), we held that even random testing of SEPTA drivers was
constitutionally justified given "SEPTA's extensive evidence of a
severe drug abuse problem among its operating employees." Id. at
711.
What we confront here, then, is not a policy alleged to
be unconstitutional; the parties agree that the SEPTA suspicion-
based testing policy is reasonable for purposes of the Fourth
Amendment. Dykes alleges, instead, that the policy was not
followed; SEPTA sought to have him submit to testing in the
absence of reasonable suspicion. It is SEPTA's violation of its
8
own policy that allegedly renders the proposed search
unreasonable.
B.
Ultimately, the question of whether a particular search
is reasonable for purposes of the Fourth Amendment is not a
question of fact. "Unlike a determination of `reasonableness' in
ordinary tort cases and some other contexts, this balancing
process presents a question of law. . . ." Bolden v. SEPTA, 953
F.2d 807, 822 (3d Cir. 1991), cert. denied, 112 S. Ct. 2281(1992). In order to resolve the reasonableness question
presented here, we must first examine the more narrow question of
whether there was reasonable suspicion underlying SEPTA's request
that Dykes submit to testing. If there was reasonable suspicion,
and SEPTA, therefore, complied with the terms of its drug and
alcohol testing policy, there is no Fourth Amendment issue; the
policy, evaluated against the background of precedent, is
reasonable in the broad constitutional sense. If SEPTA's request
that Dykes be tested was founded on reasonable suspicion, Count
One of Dykes' complaint was properly dismissed.
The dispositive issue in this case is, therefore,
whether SEPTA had reasonable suspicion upon which to test Dykes.
Relying on our en banc decision in Bolden v. SEPTA, 953 F.2d 807(3d Cir. 1991), we conclude that this question is one of fact to
be determined during the course of the grievance process and that
the finding reached during this process is binding upon the
reviewing court.
9
In order to explain this conclusion, we explore the
facts of Bolden in some detail. In 1986, Bolden, a SEPTA
custodian, was involved in an altercation with a SEPTA bus driver
and was discharged. This discharge was pursued through three
levels of grievance proceedings with Bolden represented by Local
234. In June, 1987, an arbitration panel ruled that Bolden was
entitled to reinstatement and back pay.
Between the time that Bolden was discharged and the
time that he was to return to work, SEPTA unilaterally instituted
a new drug testing policy which required that employees returning
to work after certain absences be tested for drugs. Unions
representing SEPTA workers challenged the legality of this
return-to-work testing. The district court found this type of
testing unconstitutional, Transport Workers' Local 234 v. SEPTA,
678 F. Supp. 543 (E.D. Pa. 1988), and we affirmed. Transport
Workers' Local 234 v. SEPTA, 863 F.2d 1110 (3d. Cir. 1988),
vacated, 492 U.S. 902, reaffirmed, 884 F.2d 709 (3d Cir. 1989).
Commenting on return-to-work testing, we wrote:
SEPTA must justify its return-to-work testing
on the basis of some particularized
suspicion. It has, however, failed to
present any evidence that the employees
returning to work present some unique risk
directly related to drug or alcohol use.
Thus, SEPTA has not shown that this aspect of
its program is initially justified or that
testing of all employees returning after an
absence for whatever cause has any
relationship to the articulated need for the
program.
863 F.2d at 1122.
10
While the Unions' suit was pending, but prior to the
court decisions in this matter, Bolden was reinstated. Under the
testing policy then in force, Bolden submitted to a return-to-
work drug test. He tested positive for marijuana and was again
discharged. Once again, the Union initiated grievance
proceedings on Bolden's behalf. At the end of the three-step
process but prior to arbitration and prior to resolution of the
pending suit challenging return-to-work drug testing, SEPTA and
the Union reached a settlement regarding Bolden's second
discharge. Under the terms of the settlement, Bolden was
authorized to return to work provided that he
(1) enter SEPTA's Employee Assistance Program
and present evidence of successful substance
abuse treatment, agree to an "aftercare
program," submit to a body fluids test before
returning to work, and remain subject to
unannounced follow-up tests or (2) submit to
a body fluids test and, if he passed, meet
with a substance abuse counsellor and remain
subject to unannounced follow-up testing for
six months.
Id. at 811. Under either settlement option, Bolden was required
to submit to body fluids testing. Bolden declined to return to
work on these terms and filed an action pursuant to 42 U.S.C.
§1983, alleging violation of his Fourth and Fourteenth Amendment
rights. Following a jury trial, judgment was entered for Bolden
on the Fourth Amendment claim.
On appeal, we affirmed the order of the district court
with respect to the Fourth Amendment claim, holding first that
return-to-work testing could not be justified under the balancing
test outlined in Skinner: "SEPTA has no special need to subject
11
Bolden to a drug test based on any dangers presented by his job."
Bolden, 953 F.2d at 824. We also rejected SEPTA's claim that
return-to-work testing was reasonable under the Fourth Amendment
because Bolden had, upon his original reinstatement, voluntarily
consented to drug testing as a matter of law. We found, however,
"greater merit in SEPTA's reliance on the settlement it reached
with local 234 following Bolden's discharge for drug use." Id.
at 825.
While we held that the grievance settlement did not
preclude Bolden's section 1983 claim under the doctrines of res
judicata or collateral estoppel, we found that the grievance
settlement was binding upon Bolden because "a union such as
Bolden's may validly consent to terms and conditions of
employment, such as submission to drug testing, that implicate
employees' Fourth Amendment rights." Id. at 826.
We noted that unions are given statutory authority to
make binding contractual commitments regarding the terms and
conditions of employment. "Under the Pennsylvania Public
Employees Relations Act (PERA), Pa. Stat. tit. 43 § 1101.606
(Purdon 1991), a union is the exclusive collective bargaining
representative for all of the employees in the unit, and
therefore the union, in entering into a collective bargaining
agreement, may agree to terms and conditions that are
contractually binding on all of the employees." Id. We also
reviewed caselaw generated by the Supreme Court and our sister
courts of appeals recognizing that "a union's authority as
exclusive bargaining agent necessarily entails some restrictions
12
on constitutional rights that individual employees would
otherwise enjoy." Id. Finally, we recognized that "[t]he
National Labor Relations Board has held that drug testing is a
mandatory subject of [collective] bargaining." 953 F.2d at 827.
Most importantly for purposes of reviewing Dykes'
claims, we held that certain factual questions may be
conclusively determined through collective bargaining, even where
resolution of those questions could "have important implications
under the Fourth Amendment." Id. at 828. We also made clear
that determination of these factual issues precludes their being
litigated further:
If individual public employees may litigate
such questions despite the resolution reached
through collective bargaining, the utility of
collective bargaining with respect to drug
testing would be greatly diminished. In sum,
we conclude that a public employee union
acting as exclusive bargaining agent may
consent to drug testing on behalf of the
employees it represents.
Id. This consent may be explicit, i.e., an express term in the
collective bargaining agreement, or implicit, derived from
practice, usage and custom. "[I]f the union agrees, or if
binding arbitration establishes, that the collective bargaining
agreement impliedly authorizes drug testing, individual employees
[and the court] are bound by this interpretation unless they can
show a breach of the duty of fair representation." Id. When we
applied these principles to Bolden's case, we concluded that when
the union, as Bolden's exclusive bargaining agent, pursued
grievance procedures and ultimately entered into a settlement
13
with SEPTA which mandated drug testing for Bolden, "the
settlement had the same effect under labor law and under the
Fourth Amendment as if Bolden himself consented to such future
drug testing." 953 F.2d at 829. Bolden, even though he never
personally ratified the settlement, was bound by its terms and
could not recover damages for the period of time following the
settlement.
Our holding in Bolden establishes that even where a
drug testing policy has been held to be constitutionally infirm,
a public employee may not pursue a civil rights suit based upon
that infirmity where his union and his employer agree to operate
under that policy.
C.
While Dykes' case differs from Bolden in some
significant respects, we believe that Bolden sets forth the
principles which govern the outcome of this case. Unlike in
Bolden, the issue here is not SEPTA's policy per se. As we have
explained, the policy, as written, raises no Fourth Amendment
concerns. The issue for Dykes is whether the policy was
followed, i.e., was there reasonable suspicion as required by the
CBA? The issue for us is even more basic: is the existence of
reasonable suspicion a question of law for the courts or one of
fact appropriately resolved in grievance proceedings?
We believe that under the CBA, both in the details of
the drug testing policy where reasonable suspicion is defined and
in the applicable grievance procedures, it should have been clear
14
to all parties that this question would be considered and
resolved in the grievance proceedings. At oral argument, counsel
for SEPTA represented, without challenge, that the question of
reasonable suspicion is regularly considered and resolved through
the grievance and arbitration process. We view the issue of
reasonable suspicion as one of fact which, like the question of
which jobs are "safety-sensitive," is best left to resolution in
the grievance process.
In sum, we agree with SEPTA that whether reasonable
suspicion exists in a given case is an issue involving
interpretation of the CBA and that we "must defer to this
interpretation of the agreement unless the employee can show that
the union has breached its duty of fair representation. . . ."
Id. There has been no such allegation here.
Because the question of reasonable suspicion was not
resolved in Dykes' favor in any step of the grievance process, we
find that the proposed search was reasonable. The allegations in
the complaint, therefore, are not sufficient to support a Fourth
Amendment claim cognizable under 42 U.S.C. § 1983.
III.
We next address the adequacy of the claims set forth in
Count II of Dykes' complaint. This count, directed against both
SEPTA and Local 234, alleges that Dykes was deprived of a
property interest in his job without due process of law as
required by the Fourteenth Amendment when SEPTA failed to accord
him "a meaningful opportunity to be heard with respect to the
15
discharge." Local 234 is alleged to have "aided and abetted and
acted in concert with SEPTA in effecting the deprivation of
Dykes' due process rights."5 We will not focus upon whether the
allegations set forth in Count II are sufficient to allege a
conspiracy bringing Local 234, as a private actor, within the
ambit of 42 U.S.C. § 1983. We need not reach the issue of
conspiracy because we conclude that Dykes' complaint fails to
allege a cognizable violation of his due process rights.
A.
In order to state a section 1983 claim based on the
Fourteenth Amendment, Dykes must allege that he was deprived of a
property interest under color of state law without due process.
For purposes of our analysis, we assume that Dykes has alleged
facts sufficient to establish that he had a contractual
employment relationship with SEPTA and that the relationship
created a property interest subject to Fourteenth Amendment
protection. We also assume that Dykes was deprived of that
interest when he was discharged for failing to submit to body
fluids testing. Our focus, then, rests upon the question of due
process. "We must bear in mind that no single model of
procedural fairness, let alone a particular form of procedure, is
dictated by the Due Process Clause." Kremer v. Chemical
Construction Corp., 456 U.S. 461, 483 (1982). "[D]ue process is
5
Dykes does not claim that the procedures established
are inadequate per se or that additional procedures are required.
The thrust of his complaint is that SEPTA and Local 234 acted to
make a "sham" of the procedures in place.
16
flexible and calls for such procedural protections as the
particular situation demands." Mathews v. Eldridge, 424 U.S.
319, 334 (1976) (citation omitted). The complaint establishes
that Dykes had available to him a three step grievance process
which could have been followed by arbitration. The grievance
process was exhausted and, when the union determined not to carry
the matter to arbitration, Dykes did not pursue a state court
action alleging breach of the duty of fair representation.
B.
We have held that under the Pennsylvania Public
Employee Relations Act, 43 Pa. Stat. Ann. § 101.101 et seq.,
federal labor law governs a challenge to procedures followed in
the termination of a public employee. See Crilly v. SEPTA, 529
F.2d 1355 (3d Cir. 1976). If a public employee believes that the
grievance process was defective, he may seek relief available
under state law. Once an employee establishes that a
[U]nion has acted in bad faith towards its
member[,] . . . the Court of Common Pleas
sitting in equity may order completion of the
arbitration procedure . . . . Under this
procedure a wrongfully discharged employee
receives precisely the treatment all the
employees in the unit are entitled to under
the collective bargaining agreement.
Martino v. T.W.U., Local 234, 505 Pa. 391, 409-410 (1984).
Where a due process claim is raised against a public
employer, and grievance and arbitration procedures are in place,
we have held that those procedures satisfy due process
requirements "even if the hearing conducted by the Employer . . .
17
[was] inherently biased." Jackson v. Temple University, 721 F.2d
931 (3d Cir. 1983).
In Jackson, a public employee filed suit pursuant to 42
U.S.C. § 1983 alleging that his due process rights were infringed
by the biased nature of the grievance hearings conducted by
Temple University following his discharge and by the Union's
refusal to bring the matter to arbitration. We affirmed the
district court's dismissal of the section 1983 claim, agreeing
with the district court that no precedent, "binding or
otherwise," has "recognized a section 1983 action where a union
has refused to take to arbitration an employee's claim against a
public employer." 721 F.2d at 933 n.1. We noted that
[t]he Union, as the sole and exclusive
bargaining representative had the ultimate
power to make a fair and responsible
determination as to whether it would invoke
the arbitration proceeding available under
the collective bargaining agreement. The
right to proceed to arbitration provided
. . . an adequate due process safeguard even
if the hearing conducted by the Employer
earlier had been inherently biased.
Id. at 933. Finally, we stated that, "[t]he right to arbitrate
provided . . . essentially the same due process safeguards which
would have been available through an unbiased hearing. There is
no evidence suggesting that the arbitration proceeding would have
been biased. . . . Therefore, there is no due process violation
in this case." Id. at 933 n.2.
Our opinion in Jackson was relied upon by our sister
court in Armstrong v. Meyers, 964 F.2d 948, 951 (9th Cir. 1992).
There a discharged university employee filed suit pursuant to
18
section 1983, alleging that he had been deprived of property
without due process of law. In affirming a grant of summary
judgment in favor of the defendants, the Court of Appeals for the
Ninth Circuit held that, "A public employer may meet its
obligation to provide due process through grievance procedures
established in a collective bargaining agreement, provided, of
course, that those procedures satisfy due process." Id. at 950.
The court then turned to the following balancing test established
by the Supreme Court in Mathews v. Eldridge, 424 U.S. at 335. In
order to determine whether a particular procedure meets due
process requirements, three factors must be considered:
First, the private interest that will be
affected by the official action; second, the
risk of an erroneous deprivation of such
interest through the procedures used, and the
probable value, if any, of additional or
substitute procedural safeguards; and
finally, the Government's interest, including
the function involved and the fiscal and
administrative burdens that the additional or
substitute procedural requirement would
entail.
Applying these factors in the public employee context, our sister
court of appeals recognized that an employee's interest in
retaining his job is "substantial."
However, the risk of an erroneous
determination in the grievance/arbitration
procedure is not large, and the value of
additional or substitute procedures is not
great. Grievance/arbitration procedures are
a universally accepted method of resolving
employment disputes, included in countless
collective bargaining agreements. Although
[the] union could and did decide not to take
[the employee's] claim to arbitration, it did
so under a duty of fair representation, and
may be sued for beach of that duty if its
19
"conduct toward a member of the collective
bargaining unit is arbitrary, discriminatory,
or in bad faith."
964 F.2d at 950 (citation omitted). In holding that the
grievance/arbitration procedures in place were adequate to meet
the demands of due process, the court recognized "the strong
public and private interest in maintaining an effective
grievance/arbitration process to settle disputes between
employers and employees." Id. at 951.
We are convinced that the reasoning in Armstrong v.
Meyers applies with equal force in this case. Even where, as
here, a plaintiff alleges that the defendants acted in concert to
deprive him both of a meaningful hearing and of arbitration, we
believe that the administrative process in place has incorporated
safeguards adequate to resolve these allegations in a manner
consistent with the demands of due process.6 Significantly,
6
In so holding, we re-confirm our agreement with the
many courts holding that grievance procedures outlined in
collective bargaining agreements can satisfy due process
requirements. See Wallace v. Tilley, 41 F.3d 296 (7th Cir. 1994)
(grievance procedure outlined in collective bargaining agreement
can satisfy due process even in cases where public employee has
bee discharged); Buttitta v. City of Chicago, 9 F.3d 1198, 1206
(7th Cir. 1993) (due process satisfied where police officer had
access to post-deprivation grievance procedure under collective
bargaining agreement); Narumanchi v. Bd. of Trustees of Conn.
State Univ., 850 F.2d 70, 72 (2d Cir. 1988) (hearing rights
available to discharged professor under the collective bargaining
agreement fully satisfied procedural due process even where there
were unsubstantiated claims of bias); Lewis v. Hillsborough
Transit Authority, 726 F.2d 664, 667 (11th Cir. 1983) (per
curiam), cert. denied, 469 U.S. 822 (1984) (grievance procedure,
if utilized, could eliminate a constitutional violation); Ash v.
Bd. of Educ. of Woodhaven School Dist., 699 F.2d 822, 827 (6th
Cir. 1983) (grievance procedures satisfied minimum requirements
of due process).
20
Dykes could have asked a court of common pleas to order
arbitraton pursuant to the collective bargaining agreement,
thereby assuring him of the due process to which he was entitled.
Because he chose not to do so, Dykes is unable to prove a
violation of 42 U.S.C. § 1983 by SEPTA or by Local 234. We
conclude, therefore, that Count II of Dykes' complaint was
appropriately dismissed for failure to state a cause of action.7
IV.
Because we find that the district court properly
applied Fed. R. Civ. P. 12(b)(6) in dismissing both counts of
Dykes' complaint, we will affirm the orders of the district
court.
7
While Dykes elected to appeal the dismissal of the
complaint rather than seek leave to amend under Fed. R. Civ. P.
15, this fact alone does not preclude amendment of the complaint.
Dist. Council 47, American Federation v. Bradley, 795 F.2d 310,
316 (3d Cir. 1986). This is not a situation, however, where the
complaint has been dismissed for lack of specificity or some
other readily curable defect. Given the facts of this case and
the law as we have stated it, amendment of the complaint will not
result in its being found sufficient to withstand a renewed
motion under Fed. R. Civ. P. 12(b)(6).
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