comply with the labor agreement and not to effectuate Smith's termination. Contrary to the clear language of the memoranda, the City advances this argument to establish that Smith was not terminated until some time after the August 15, 1979, hearing.
This argument misses the mark. What it does point out, however, is that prior to the City's post-termination hearing Smith was never given written notice of his discharge as required by due process and the terms of the labor agreement. Under the Perri decision Smith was entitled to a statement of the specific reasons for his dismissal. Perri, slip op. at 10. Also, the labor contract provides that the City will notify an employee in writing within two days of his discharge. The record is abundantly clear that at no time prior to the August 15, 1979, meeting was Smith notified in writing that he was being discharged for the alleged altercation that occurred two days earlier.
Second, it is important to note, Smith was not given five days to respond to the charges in writing as required by the labor agreement. Smith was terminated on August 13, 1979. The post-termination hearing was held two days later. Assuming, arguendo, that Smith had received written notice on August 13, 1979, it is patently obvious that Smith was denied an adequate opportunity to prepare his response as required by due process and by the five-day period provided for in the labor agreement.
Even if this Court were to adopt the City's position that Smith was not in fact discharged until he received a letter from the Director terminating his employment on August 21, 1979, this Court would nevertheless be bound to conclude that the City's discharge procedures violated Smith's due process rights. This result is required because of the City's failure to follow the grievance procedure outlined in the labor agreement. In addition to the provisions previously discussed, the labor agreement provides that a discharge hearing shall begin at step two of the grievance procedure; the City started Smith's hearing at step three of the procedure. The agreement provides that a written answer shall be given the employee within three days after the hearing; Smith did not receive his written response until five days after the hearing. In sum, were this Court to assume that the grievance machinery in the collective bargaining agreement met minimum due process requirements, this Court would still be constrained to hold in Smith's favor because the City ignored the procedural safeguards provided in that agreement.
On the basis of the record before this Court, Smith's termination by the City deprived him of the minimum procedural due process protection required by law. Viewing the record favorable to the City, on the undisputed facts, Smith is entitled to judgment as a matter of law. Therefore, it is the judgment of this Court that Smith be immediately reinstated until such time as the City provides him a specific statement of the reasons for his dismissal, adequate time to respond thereto and a termination hearing consistent with this opinion. Also, Smith is awarded back pay from the time of the due process violation, August 13, 1979, until his reinstatement. Smith shall be awarded an amount commensurate with the amount Smith would have received, including benefits and incremental raises, but for his wrongful discharge. Attorney fees are awarded to the prevailing party.
This Court finds inapposite the cases cited by the City which limits the amount of back pay awarded for due process violations to the period beginning with the violative discharge and ending after a curative, subsequent post-termination hearing was held. Smith's case is distinguishable because the City's post-termination hearing itself failed to pass constitutional muster. Judgment for the plaintiff, Lester Smith.
AND NOW, to wit, this 6th day of April, 1984, upon consideration of arguments, briefs and the Cross-Motions For Summary Judgment filed in the above-captioned case and for the reasons set forth in the accompanying opinion, it is ORDERED, ADJUDGED and DECREED that the Plaintiff's, Lester Smith, Motion For Summary Judgment be and the same is hereby GRANTED and that the Defendant's, City of Pittsburgh, Motion For Summary Judgment be and the same is hereby DENIED.