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LEWIS v. SEPTA

September 16, 1977

PHYLLIS M. LEWIS, Plaintiff
v.
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY et al., Defendants



The opinion of the court was delivered by: DITTER

 Plaintiff, a black woman discharged by Southeastern Pennsylvania Transportation Authority (SEPTA), instituted this action against her former employer and certain of its supervisory and management personnel *fn1" charging that rights guaranteed her by the United States Constitution, 42 U.S.C. § 1983, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., *fn2" were violated. In particular, she contends that she was discharged in retaliation for having previously filed a complaint with the Pennsylvania Human Relations Commission and because she openly opposed defendants' discriminatory practices. Presently before the court is defendants' motion to dismiss which, for the reasons hereafter stated, must be granted in part as to the Section 1983 claim and denied as to the Title VII action.

 1. The Factual Background

 Taking as true the allegations of the complaint, as I must do in a motion to dismiss, Cooper v. Pate, 378 U.S. 546, 84 S. Ct. 1733, 1734, 12 L. Ed. 2d 1030 (1964), and all reasonable inferences therefrom, Curtis v. Everette, 489 F.2d 516, 518 (3d Cir. 1973), cert. denied 416 U.S. 995, 94 S. Ct. 2409, 40 L. Ed. 2d 774 (1974), the pertinent facts may be stated as follows. In September, 1970, plaintiff applied for a position as a bus or trolley operator with SEPTA. When she was refused employment, she filed a complaint with the Pennsylvania Human Relations Commission (hereafter PHRC) charging that she had been rejected because of her race and sex. The PHRC investigated and determined that SEPTA had not had a female trolley or bus driver since World War II and had never hired a black female for such a position. In a conciliation settlement, SEPTA agreed to employ plaintiff and pay her $2600. in back wages. On January 31, 1972, she became a trainee and was assigned to the Luzerne depot to operate trolleys. Thereafter, she was transferred to the Germantown depot in December, 1972, to operate buses.

 According to plaintiff, the individual defendants began to harass and frustrate her almost immediately by changing her shift without cause, refusing to provide her with proper medical treatment for work-related injuries, assigning her to unsafe and substandard buses and trolleys, and altering her days off without adequate notice. In January, 1973, plaintiff was placed on a five-day suspension. During this suspension, she filed charges with the Pennsylvania State Occupational Safety and Health Office, complaining that SEPTA's buses and trolleys were unsafe and did not meet the basic standards of pollution control. Thereafter, on January 29, 1975, two wheels fell off the bus she was operating on her assigned route. Ten days later, plaintiff gave an interview, aired that evening over a local Philadelphia television station, in which she stated that she believed that SEPTA's equipment was unsafe, its employment practices were discriminatory, and its management was conspiring against her. The next day, February 9, 1973, plaintiff was discharged by Depot Superintendent Kenner, by direction of SEPTA's General Superintendent of Transportation Aikens, due to her "unsatisfactory overall performance" (Complaint, paragraph 17). *fn3" Plaintiff then filed a complaint against SEPTA and Local 234 of the Transport Workers Union with the Equal Employment Opportunity Commission (hereafter EEOC). The EEOC determined that there was reasonable cause to believe that the "dismissal action at least in part, was based on retaliation against charging party because she had filed a complaint of discrimination with the PHRC and because she ardently and vociferously opposed practices forbidden by the Act." EEOC Determination, at p. 3. Conciliation, though attempted, was unsuccessful and plaintiff commenced this action within 90 days following receipt of the Notice of Right to Sue Letter.

 The first count of the complaint asserts a claim against all defendants under the retaliation provision of Title VII, 42 U.S.C. § 2000e-3(a). In the second count, plaintiff alleges that defendants deprived her of her Fourteenth Amendment right to substantive due process and her First Amendment right of free speech. Because both sides have placed the majority of emphasis on plaintiff's second cause of action, I shall consider that claim first.

 2. Plaintiff's Claims under 42 U.S.C. § 1983 (Count II)

 Although defendants have advanced four grounds for dismissal of this count, only one argument warrants extensive comment: *fn4" the contention that this action must be dismissed on the merits because the complaint has failed to state a cause of action under either of the two general theories recognizing the right of substantive due process. I find, however, that plaintiff has set out a claim for a violation of her substantive due process rights and that dismissal of the complaint on this ground would be improper. *fn5"

 Defendants' argument is premised upon the balancing test first adopted in Pickering v. Board of Education, 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968), and utilized in cases such as this where a public employee has been discharged for making public statements critical of his employer. In Pickering, a high school teacher, who had written a letter to a local newspaper criticizing the school board and the superintendent for their handling of bond issues, was dismissed by the school board for conduct detrimental to the efficient operation and administration of the schools. The Supreme Court held that the board's action had violated Pickering's right of free speech and concluded that public employment did not necessitate the relinquishment of First Amendment rights. Rather, the Court felt that a balance should be struck, weighing the employee's interests as a citizen in speaking out on matters of public importance against the detrimental effects the communication would have on the efficient operation of the public employer's business. The Court declined to issue a hard and fast rule delineating those situations where the employee's speech would be protected simply because of the infinite variety of fact situations that could arise, Pickering, supra, 391 U.S. at 569, 88 S. Ct. at 1735, but it is clear that the "crucial variant in this balance appears to have been the hierarchial proximity of the criticizing employee to the person or body criticized," Sprague v. Fitzpatrick, 546 F.2d 560, 564 (3d Cir. 1976), cert. denied 431 U.S. 937, 53 L. Ed. 2d 255, 97 S. Ct. 2649, 45 U.S.L.W. 3777 (1977), in light of the Court's observations that "significantly different considerations would be involved" in those cases where

 
. . . "the relationship between superior and subordinate is of such a personal and intimate nature that certain forms of public criticism of the superior by the subordinate would seriously undermine the effectiveness of the working relationship between them . . ." Pickering, supra, 391 U.S. at 570 n. 3, 88 S. Ct. at 1735.

 The Third Circuit first applied this test in Roseman v. Indiana University, 520 F.2d 1364 (3d Cir. 1975), cert. denied 424 U.S. 921, 96 S. Ct. 1128, 47 L. Ed. 2d 329 (1976), and affirmed the dismissal of an associate university professor who had criticized the acting chairman of her department's teaching staff. The Court of Appeals decided that Roseman's statements were not protected for two reasons: first, because they did not rise to the same level of public importance that was present in Pickering and second, the element of disruptive impact contained in Roseman's statements. In so holding, the court declared:

 
. . . Pickering's attacks were on a remote superintendent and school board; in contrast, Roseman's called into question the integrity of the person immediately in charge of running a department which, it is fair to assume, was more intimate than a school district. The district court found that "plaintiff's attacks upon Faust's integrity in a faculty meeting would undoubtedly have the effect of interfering with harmonious relationships with plaintiff's superiors and co-workers." Roseman v. Hassler, 382 F. Supp. 1328, 1339 (W.D. Pa. 1974). In making this finding, the district court reflected a similar concern expressed by the Supreme Court, which noted that Pickering's statements were "in no way directed towards any person with whom [Pickering] would normally be in contact in the course of his daily work as a teacher." Pickering, supra, 391 U.S. at 569-70, 88 S. Ct. at 1735. Because of this, Pickering's case raised "no question of maintaining either discipline by immediate superiors or harmony among co-workers." Id. at 570, 88 S. Ct. at 1735. The same obviously cannot be said of Roseman's faculty meeting accusations directed at the Acting Chairman of her Department [footnote omitted]. Id. at 1368-69.

 The Court found a similar example of a disruptive situation in Sprague v. Fitzpatrick, supra, 546 F.2d at 560, affirming my earlier decision, see 412 F. Supp. 910 (E.D. Pa. 1976), by holding that newspaper interviews given by the first assistant district attorney of Philadelphia impugning the integrity of the district attorney created an irreparable breach of confidence between the two men and "totally precluded any future working relationship." Sprague, supra, 546 F.2d at 565. The court was aware that Sprague's criticisms were of grave public import but declined to tilt the Pickering balance in favor of First Amendment protection where the statements had so severely undermined the employer-employee relationship. The public importance of an employee's statements do not create automatic First Amendment protection; it is only one of the factors to be weighed in the speaker's favor. The key question under Pickering is the effect on the employment relationship. Id. at 565-66.

 With the preceding as background, I find that the instant case falls closer to the situation in Pickering and conclude that plaintiff's speech was entitled to First Amendment protection. Defendants contend that plaintiff's accusations reached the same level as the statements in Roseman and Sprague because they were certain to disrupt the functioning of plaintiff's department and foreclosed any possible effective working relationship with her superiors. But it is clear that plaintiff's comments were not directed toward her immediate superiors; they were aimed at the management of SEPTA whom she charged with conspiracy and discriminatory employment practices. Bus drivers do not work in close association with SEPTA's management. Therefore, the criticisms would not affect anyone with whom plaintiff would have daily contact and would not upset or interfere with harmonious relationships with her co-workers. As in Pickering, the comments raised no question of maintaining departmental discipline by her immediate supervisors. For these reasons, I find that plaintiff's remarks did not foreclose any possible working relationship with her ...


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