reapply through Civil Service channels. A reasonably prompt post-termination hearing would ordinarily be entirely adequate to redress wrongful deprivations of such a right. If the fact-finder at such a hearing were to conclude that the employee had been entitled to remain on leave of absence the employee could simply be returned to that status. In the meantime, the employee would presumably not have suffered deprivation of income which he expected to receive. This Court can find no justification for imposing the burden of providing a pre-termination hearing on Graterford when it terminates an employee following expiration of a leave of absence without pay for failure to report to work.
Plaintiff's final challenge to the procedures followed in terminating his employment concerns his failure to obtain a post-termination hearing on the merits of his claim. In fact, the arbitration hearings held on October 13, 1978, and January 3, 1979, did encompass the merits of Mr. Riddick's claim that his discharge was not justified, but the arbitrator held following these hearings that plaintiff's grievance was not arbitrable under the contract, due to the filing of an appeal in his name with the Civil Service Commission. The arbitrator specifically found that the mailgram initiating the Civil Service Commission appeal was sent either by plaintiff himself or by one acting as his legal agent. In reaching an identical conclusion, this Court gives appropriate weight to the arbitrator's finding. Moreover, the arbitrator reported that plaintiff testified at the arbitration hearing that his agent, Helen Miller, sent the disputed mailgram. In the trial of this action, plaintiff stated under oath that the arbitrator was "lying" in so reporting his testimony at the arbitration hearing. The Court does not credit plaintiff's testimony that his brother, who died in 1978, sent the mailgram, rather than Helen Miller.
Given that the filing of the Civil Service appeal was binding on plaintiff, it is clear from the language of the Union contract that the filing of this appeal made plaintiff's Union grievance non-arbitrable, as found by the arbitrator. It is equally clear, from plaintiff's own testimony, that he intentionally withdrew the Civil Service appeal filed in his name, and did not re-file it in a timely fashion, thereby waiving his right to proceed in that forum. Plaintiff apparently did this in a mistaken belief that his grievance was still arbitrable and that he would eventually receive a hearing and adjudication on the merits of his grievance from an arbitrator.
Plaintiff was caught in a "Catch-22" situation. Although it is unfortunate that he unintentionally waived his rights to any determination on the merits of his discharge, we are constrained to hold that this does not, in and of itself, mean that plaintiff was denied due process of law. Plaintiff had notice from the language of the contract, with which he was familiar, that the filing of a Civil Service appeal would terminate his right to process his grievance through the union, and he is bound by his own act or that of his agent in filing such an appeal. The Court is unable to discern any convincing distinction between this case and that of Abbruzzese v. Berzak, 601 F.2d 107 (3d Cir. 1979). That case involved an identical Union contract provision and also concerned an employee who unintentionally waived his right to a full hearing on the merits of his claim in either forum by relying on a mistaken view of the legal effect of his actions. The Third Circuit Court of Appeals held that the plaintiff's failure to obtain any hearing on the merits of his claim did not amount to a Due Process violation, and that Due Process guaranteed him only the right to obtain a hearing if he correctly followed the ordained procedures.
Consistent with this memorandum, an appropriate order will be entered today granting defendants' motions under Rule 41 for involuntary dismissal.