plaintiff's nor defendants' interpretation of the employment relationship controls on this issue, however. The state law from which this understanding must stem remains unclear, and the subjective notions or expectations of the parties cannot resolve such a legal question.
As I stated in Nelson, supra, 420 F. Supp. at 1380, the contention that SEPTA employees have a property interest in their job is not without merit. The problem is that there is also merit in defendants' contrary position. This is so even though resolution of the issue does not involve the collective bargaining agreement which was a complicating factor in Nelson. It is still my view that state law on this issue is sufficiently unclear to warrant abstention. Cf. Frederick L. v. Thomas, 557 F.2d 373, 383 (3d Cir. 1977). A state has an important interest in regulating its own employment practices free from outside interference. See Bishop, supra, 426 U.S. at 349-50 & n.14. Abstention will allow the state's own courts to consider these employment practices in light of federal constitutional guarantees and possibly avert a need for federal court interference. This is one of the purposes abstention was intended to serve. Frederick L., supra, at 381.
Plaintiff contends that abstention is inappropriate because there is no adequate state law cause of action which will permit him to obtain an answer to the property interest question without also adjudicating his constitutional claim. See generally Field, Abstention in Constitutional Cases: The Scope of the Pullman Abstention Doctrine, 122 U.Pa.L.Rev. 1071, 1144-47 (1974). The abstention procedure outlined in England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 11 L. Ed. 2d 440, 84 S. Ct. 461 (1964), requires a federal plaintiff to submit to state courts
unsettled questions of state law in the context of the federal constitutional issue presented. While the plaintiff may, of course, allow the state courts to decide the federal constitutional issue, he may, if he so desires, reserve his right to return to federal court for ultimate resolution of the federal question. Although England is not entirely clear on the manner in which the plaintiff is to submit the case to the state courts, I see no reason why a plaintiff may not file the same civil rights action that he had brought in federal court rather than utilizing a separate cause of action under state law. Such a procedure would present the state law issue in exactly the same context as that faced by the federal court. State courts can hear federal civil rights actions. Terry v. Kolski, 78 Wis.2d 475, 254 N.W. 2d 704 (1977); Commonwealth ex rel. Saunders v. Creamer, 464 Pa. 2, 4-5 n.3, 345 A.2d 702, 703-04 n.3 (1975); see Jones v. Hildebrant, 432 U.S. 183, 97 S. Ct. 2283, 53 L. Ed. 2d 209, 45 U.S.L.W. 4703 (1977). Contra, Chamberlain v. Brown, 223 Tenn. 25, 442 S.W.2d 248 (1969). See also Testa v. Katt, 330 U.S. 386, 91 L. Ed. 967, 67 S. Ct. 810 (1947). Even if plaintiff may not proceed in that fashion, however, I do not agree with his contention that the Pennsylvania declaratory judgment procedure is so "cumbersome" that it will not provide adequate relief. In Friestad v. Travelers Indemnity Co., 452 Pa. 417, 306 A.2d 295 (1973), the Pennsylvania Supreme Court abandoned the restrictive judicial rules which had been applied to the Uniform Declaratory Judgments Act and its supplementary provisions, 12 P.S. §§ 831-853, and adopted a policy favoring liberal construction of the statute. Recently, the General Assembly further liberalized the declaratory judgment procedure as part of its enactment of a new judicial code. See Declaratory Judgments Act, 42 Pa. C.S.A. §§ 7531-7541 (especially §§ 7533, 7541) (effective upon enactment of legislation repealing Act of July 9, 1976, P.L. 586, No. 142, § 29(4)). I therefore reject plaintiff's contention that an adequate state law remedy is lacking.
I recognize that abstention may lead to some delay in resolving plaintiff's claims. See Frederick L., supra, 557 F.2d at 381-82. In my view, however, given the lack of state law clarity and the importance and sensitive nature of the state policies implicated in this case, the considerations of federalism underlying the Pullman abstention doctrine outweigh whatever inconvenience plaintiff may suffer. I therefore shall adhere to the decision in Nelson that whether a SEPTA employee has a property interest in his job is an unsettled question of state law which initially should be decided by the Pennsylvania courts.
In Nelson, plaintiff's sole contention was that he had been deprived of a property interest without due process of law. As a result, the decision to abstain from deciding the property interest question necessarily disposed of the entire constitutional claim. In this case, however, plaintiff makes the alternate contention that, whether or not he had a property interest, the discharge from his employment for reasons which affected his reputation in the community deprived him of liberty without due process.
Unlike the property interest question, whether plaintiff has been deprived of "liberty" within the meaning of the Due Process Clause is a question of federal, not state, law. See, e.g., Bishop, supra; cf. Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816, 838-847, 97 S. Ct. 2094, 2107-11, 53 L. Ed. 2d 14, 45 U.S.L.W. 4638, 4644-46 (1977). The Supreme Court has discussed the liberty interest in reputation in a series of recent cases. See Codd v. Velger, 429 U.S. 624, 51 L. Ed. 2d 92, 97 S. Ct. 882 (1977); Bishop, supra, 426 U.S. at 347-50; Paul v. Davis, 424 U.S. 693, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976); Goss v. Lopez, 419 U.S. 565, 574-75, 42 L. Ed. 2d 725, 95 S. Ct. 729 (1975); Arnett, supra, 416 U.S. at 156-57 (plurality opinion); Roth, supra, 408 U.S. at 572-75. In Paul, supra, the Court held that reputation in and of itself is not a "liberty" interest. Nevertheless, Paul and the other cited cases have stated that when a person suffers injury to his reputation in the course of his discharge from public employment, a liberty interest is implicated. The theory apparently is that damage to reputation, which normally can be redressed in a state tort action, is not sufficiently important to be labelled "liberty," but that when that damage is inflicted by the government in the course of some other action detrimental to plaintiff, the "extent of harm worked by that act" ( Paul, supra, 424 U.S. at 709) reaches a level of seriousness meriting due process protection. See id. at 701-10.
The rule thus applies even though a plaintiff is discharged from employment which does not constitute "property" under state law. See Codd, supra, 429 U.S. at 627-28. To be actionable, the injury to reputation must result from a false accusation ( Codd, supra) which has been made public ( Bishop, supra, 426 U.S. at 348-49).
Paragraph 14 of the complaint alleges that defendants "discharged Plaintiff . . . on the alleged grounds that he had been intoxicated while at work and that he had failed to perform his designated duties." In para. 15, McKnight avers that in a later unemployment compensation proceeding "the stated reason for discharge was arbitrarily changed by Defendants"; he does not state what new reason was given. The complaint then states that "[the] allegations made by SEPTA officials were untrue" (para. 16) and "[as] a result of Defendants' communication to others of SEPTA's discharge of Plaintiff and other unsubstantiated charges against Plaintiff, he has suffered loss of reputation in the community and loss of opportunity for other employment" (para. 22). These allegations do not state a claim of deprivation of liberty through damage to reputation during discharge from employment.
The averment of falsity in para. 16 is somewhat ambiguous in that it could refer either to the "allegations" of intoxication and failure to perform duties set forth in para. 14 or to the unspecified new allegations made at the unemployment compensation proceeding and noted in para. 15. Similarly, the averment in para. 16 is unclear as to just what information was communicated "to others" and is much too vague in stating that the false accusations were made public. These defects could be cured by amendment. In my view, however, the fatal flaw in McKnight's liberty interest claim is that the accusation about which he complains is not sufficiently stigmatizing. As the Ninth Circuit stated in Gray v. Union County Intermediate Education District, 520 F.2d 803, 806 (9th Cir. 1975):
"Nearly any reason assigned for dismissal is likely to be to some extent a negative reflection on an individual's ability, temperament, or character. Jenkins v. U.S. Post Office, 475 F.2d 1256, 1257 (9th Cir. 1973). But not every dismissal assumes a constitutional magnitude. The concern is only with the type of stigma that seriously damages an individual's ability to take advantage of other employment opportunities."
Cf. Restatement (Second) of Torts § 559 (1977) (common law defamation).
In Roth, supra, 408 U.S. at 573, the Supreme Court characterized actionable accusations as those "that might seriously damage [a plaintiff's] standing and associations in his community" and gave as examples charges of "dishonesty, or immorality." Surely the charge that McKnight "failed to perform his designated duties" on the job does not equate with the type of charge referred to in Roth. Failure to perform job-related tasks is a rather common occurrence, and, although it does not reflect positively on an individual, it is not the type of conduct which will subject him to such public scorn or ridicule that he will be unable to obtain other employment. As I read para. 14, the charge that plaintiff "had been intoxicated while at work" referred to an isolated incident and therefore also is not of a stigmatizing character. A charge of intoxication does not reflect "dishonesty," or "immorality" or any similar "serious character defects" ( Gray, supra, at 806). Intoxication is not illegal. As defendants point out, there was no general charge of alcoholism, such as would seriously reflect on an individual's ability to perform adequately in an employment situation. At most, an isolated incident of intoxication reflects intemperance and unsatisfactory job performance, but in this respect it is no different from a charge of falling asleep on the job or failure to properly perform assigned tasks. Since the accusations against McKnight were not sufficiently stigmatizing, McKnight has failed to state a claim for deprivation of his liberty interest in reputation.
Insofar as this civil rights action is based on deprivation of plaintiff's liberty interest, the case will be dismissed for failure to state a claim.
B. Due Process of Law
Since I have held that plaintiff's claims are subject to dismissal insofar as they are based on a liberty interest in reputation, this case now assumes the exact same posture as that in Nelson, supra. Plaintiff asserts that he was denied property -- his job -- without procedural or substantive due process of law. Whether plaintiff actually has a property interest in his job is an unclear question of state law. If the answer to that question is no, plaintiff has not been deprived of a constitutional "life, liberty, or property" interest and the procedural and substantive protections of the Due Process Clause do not apply to the case. Since resolution of the state law property interest question might avoid the need for a federal constitutional ruling in this case, the Pullman abstention doctrine is directly applicable. Nelson, supra; Vasiloff v. Southeastern Pennsylvania Transportation Authority, Civil No. 76-1349 (E.D. Pa., Nov. 24, 1976); Perry v. Sindermann, 408 U.S. 593, 603-04, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972) (Burger, C.J., concurring); see Bellotti v. Baird, 428 U.S. 132, 49 L. Ed. 2d 844, 96 S. Ct. 2857 (1976); Harris County Commissioners Court v. Moore, 420 U.S. 77, 83-84, 43 L. Ed. 2d 32, 95 S. Ct. 870 (1975); Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 85 L. Ed. 971, 61 S. Ct. 643 (1941); cf. Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471, 477, 480-481, 97 S. Ct. 1898, 1902-05, 52 L. Ed. 2d 513, 45 U.S.L.W. 4544, 4546-47 (1977).
That this analysis is correct with regard to the procedural due process claim is clear. The procedural protections which, under the Due Process Clause, must attend a deprivation of property or liberty by the government vary with each fact situation ( Morrissey v. Brewer, 408 U.S. 471, 481, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972)), and the Supreme Court has prescribed a three-part factual analysis to determine what safeguards are required in a particular case (see Mathews v. Eldridge, 424 U.S. 319, 334-35, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976); accord, Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816, 848-849, 97 S. Ct. 2094, 2112, 53 L. Ed. 2d 14, 45 U.S.L.W. 4638, 4646 (1977); Ingraham v. Wright, 430 U.S. 651, 675, 97 S. Ct. 1401, 51 L. Ed. 2d 711, 45 U.S.L.W. 4364, 4370 (1977). All of the cases hold, however, that this analysis does not come into play until it is first determined that plaintiff's life, liberty, or property has been deprived. See, e.g., Smith, supra, at 840-841, 97 S. Ct. 2094, 45 U.S.L.W. at 4644, quoting Board of Regents v. Roth, 408 U.S. 564, 570-71, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972); Ingraham, supra, at 672, 97 S. Ct. 1401, 45 U.S.L.W. at 4369.
I believe that the substantive due process claim rests on no different footing, but because of the peculiar nature of substantive due process, this conclusion requires more detailed discussion.
In recent times, the substantive due process doctrine has been one of the most controversial areas of federal constitutional law. Read literally, the Due Process Clause would only seem to apply to procedures resulting in deprivation of life, liberty, or property, but by judicial construction it is now firmly established that the clause has substantive content as well. See Moore v. City of East Cleveland, 431 U.S. 494, 97 S. Ct. 1932, 52 L. Ed. 2d 531, 45 U.S.L.W. 4550 (1977). At its most basic level, the substantive due process doctrine proscribes interferences with life, liberty, or property "by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect." Meyer v. Nebraska, 262 U.S. 390, 400, 67 L. Ed. 1042, 43 S. Ct. 625 (1923). Under this test, presumptively valid state legislation will not be struck down unless the aim it is to achieve is not within the range of legitimate state interests or it is not rationally related to the attainment of a legitimate end. See, e.g., Whalen v. Roe, 429 U.S. 589, 51 L. Ed. 2d 64, 97 S. Ct. 869 (1977); Kelley v. Johnson, 425 U.S. 238, 47 L. Ed. 2d 708, 96 S. Ct. 1440 (1976); Village of Belle Terre v. Boraas, 416 U.S. 1, 39 L. Ed. 2d 797, 94 S. Ct. 1536 (1974); Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 71 L. Ed. 303, 47 S. Ct. 114 (1926). When legislation infringes on liberty which is "fundamental," a more searching test is employed. The courts will then inquire into the importance -- rather than merely the legitimacy -- of the objective sought to be achieved, as well as the necessity of using interference with fundamental liberties as a means of reaching that end. See, e.g., Bates v. State Bar of Arizona, 433 U.S. 350, 97 S. Ct. 2691, 53 L. Ed. 2d 810, 45 U.S.L.W. 4895 (1977) (infringement of freedom of speech); Carey v. Population Services International, 431 U.S. 678, 97 S. Ct. 2010, 52 L. Ed. 2d 675, 45 U.S.L.W. 4601 (1977) (infringement of right to privacy); Moore, supra (plurality opinion) (infringement of freedom of choice in family matters); Wisconsin v. Yoder, 406 U.S. 205, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972) (infringement of religious freedom).
In this case, plaintiff does not directly attack any state legislation; he only challenges his own discharge under authority of § 25 of the Metropolitan Transportation Authorities Act. Plaintiff does not contend that he was denied any "fundamental liberty" as that term is used in substantive due process cases. Nor does he deny that SEPTA has a legitimate interest in maintaining a level of competency in its public employees or that discharge of an employee for the reasons given by defendants in this case -- intoxication while at work and failure to perform designated duties -- is rationally related to furtherance of that interest. Instead he contends that the reasons given for his discharge were false and without factual basis; he avers that despite the reasons given by defendants, the discharge actually was arbitrary, irrational, and capricious. Plaintiff argues that he has a right to be free from such arbitrary, irrational, and capricious governmental conduct and that that right is in itself a constitutional liberty interest independent of whatever property interest he may have in his job or liberty interest in his reputation. In effect, therefore, plaintiff argues that substantive due process is an independent liberty interest unto itself. See generally Comment, Substantive Due Process: The Extent of Public Employees' Protection from Arbitrary Dismissal, 122 U.Pa.L.Rev. 1647 (1974).
It is important to note the ramifications of plaintiff's substantive due process claim. Under plaintiff's view, apparently any person may obtain federal review of his discharge from public employment merely by asserting that the reasons given by the employer were false. This theory converts the federal courts into a state employment appeals board, supplanting the administrative and judicial mechanisms established by the states to review personnel decisions. Under such a view, the admonition of the Supreme Court in Bishop, supra, must be kept in mind:
"The federal court is not the appropriate forum in which to review the multitude of personnel decisions that are made daily by public agencies. We must accept the harsh fact that numerous individual mistakes are inevitable in the day-to-day administration of our affairs. The United States Constitution cannot feasibly be construed to require federal judicial review for every such error. In the absence of any claim that the public employer was motivated by a desire to curtail or to penalize the exercise of an employee's constitutionally protected rights, we must presume that official action was regular and, if erroneous, can best be corrected in other ways. The Due Process Clause of the Fourteenth Amendment is not a guarantee against incorrect or ill-advised personnel decisions."