SEPTA seeks a summary judgment that Frederick received due process before he was terminated. It contends that Frederick was not terminated until April 6, 1993 because SEPTA regulations only permit terminations in the presence of a union representative, if one is available. Because the formalities of discharge were present only at the April 6, 1993 meeting, SEPTA contends this was when he was actually discharged. In addition, SEPTA points to all its internal paperwork, which all indicates a termination date of April 6, 1993.
SEPTA asserts that at the April 6, 1993 meeting, Frederick was informed of the nature and substance of the evidence against him, given an opportunity to respond, which he chose not to take, and then discharged. Provided that all this is true, a summary judgment in SEPTA's favor would be appropriate.
Frederick's version of the facts is different, however. He contends that he was discharged twice before his final discharge at the April 6, 1993 meeting. He also contends that he was suspended without pay on March 25, 1993. Because this is a summary judgment motion, we temporarily put aside the internal inconsistency in a person being discharged from the same job on three separate occasions with no intervening re-hirings.
1. Suspension Without Pay.
First, Frederick argues that he was entitled to a hearing before he was suspended without pay by Dr. Parchuri. He cites Bradley, 913 F.2d at 1077, for support. There, the plaintiff was not formally suspended, but was restrained from returning to work and was not paid. The Third Circuit held that this fact took the case out of the Loudermill framework, because of the Supreme Court's belief that "if a governmental employer believes there are significant hazards in keeping an employee on the job until the time a hearing could be held, 'it can avoid the problem by suspending with pay.'" Bradley, 913 F.2d at 1077, quoting Loudermill, 470 U.S. at 545.
The problem with this argument is that Frederick's Amended Complaint does not make a claim for lack of pre-suspension due process. For this reason, this entire line of argument is irrelevant to this motion. Therefore, we do not address whether there is a material issue of fact as to whether Frederick was denied an opportunity to be heard at this meeting, given his own testimony that he attempted to explain the test results and did demand a retest, nor do we address the substantive question whether Frederick was entitled to a hearing before being suspended without pay.
2. Discharge by Dr. Parchuri.
Frederick avers, presumably in the alternative, that he was actually discharged at the meeting by Dr. Parchuri. In response, SEPTA provides a plethora of evidence that Frederick was not discharged on March 25, 1993. This evidence is first, that Dr. Parchuri had no firing authority and so that no matter what Dr. Parchuri said, he was incapable of actually discharging Frederick. Second, that Frederick received health insurance benefits until April 6, 1993, indicating that he was still an employee until that date. Finally, that all SEPTA's internal records show that Frederick was terminated on April 6, 1993.
We find that in this instance, there is no material issue of fact that Frederick was not discharged on March 25, 1993 by Dr. Parchuri. We make this finding despite Frederick's testimony that Dr. Parchuri said he was discharged at that meeting and despite Frederick's affidavit that his last date of employment was March 25, 1993 and that between March 25, 1993 he was not permitted to work and received no pay. Assuming all that is true, this is not evidence that Frederick was actually terminated on March 25, 1993 as opposed to suspended without pay.
A non-moving party may not withstand summary judgment on the basis of evidence not based on personal knowledge or by making conclusory allegations as to ultimate facts or conclusions of law. Anderson, 477 U.S. at 254-55. Frederick does not contest that Dr. Parchuri had no power to discharge him and he agrees that he did not receive a Notice of Termination from Dr. Parchuri. Rather, he simply relies on Dr. Parchuri's statement that Frederick was discharged. This conclusory statement, admittedly made without authority, is not enough for a reasonable fact-finder to base a verdict on. For that reason, there is no genuine issue whether Dr. Parchuri discharged Frederick.
3. Discharge by Berardi prior to April 6, 1993.
Frederick contends that he was also discharged at the informal meeting with Berardi held before April 6, 1993. Berardi actually had the authority to discharge Frederick even if no union representative was available. Berardi has no independent recollection of this meeting so we have only Frederick's testimony as to what took place then is uncontested by evidence.
Frederick testified at his deposition that when he went into the meeting, he was aware the meeting concerned his livelihood. At the meeting Berardi told him that he was in violation of the Integrated Program, that he was terminated and that he should return on April 6, 1993 with a union representative. Frederick also testified that he had no opportunity to be heard at this meeting because the decision to terminate him had already been made. There is, however, no evidence that he was prevented from speaking or from arguing his side of the case.
The Supreme Court has stressed that due process requires notice and an opportunity to be heard. Frederick maintains that due process required the hearing to take place before the actual decision to terminate him was made and not just before the actual termination took place. He cites no caselaw in support of this assertion. In fact, a reading of the precedents indicates that decisions to terminate have frequently been made before the Loudermill-required hearing. McDaniels v. Flick, 59 F.3d 446, 451 (3d Cir. 1995), cert. denied, 64 U.S.L.W. 3439 (Feb. 26, 1996); Copeland, 840 F.2d at 1145. Loudermill itself stresses that the hearing must be held before the deprivation. 470 U.S. at 545. It says nothing, however, about a pre-decision hearing. Id. (hearing is "an initial check against mistaken decisions ") (emphasis added).
We find that because Frederick had notice of the subject matter of the meeting, he was informed of the nature of the evidence against him at the meeting and met personally with the decision-maker, there is no question of fact that, assuming Frederick was discharged at the pre-April 6, 1993 meeting, he received due process.
4. Discharge by Berardi on April 6, 1993.
Finally, Frederick contends that he was deprived of due process at the April 6, 1993 meeting, when he was formally discharged. He contends that he was denied the opportunity to be heard, resulting in the violation. This argument is based on his deposition testimony that because he was hearing that he was terminated for the third time, he thought it would be futile to say anything. He agrees that he was not told he could not speak.
Again, we find that there is no genuine issue of material fact that Frederick received due process at the April 6, 1993 meeting. At that meeting he was specifically aware of the evidence against him, he had a union representative and he was not prevented from speaking. That he chose not to speak or believed it would be futile to speak is not the same as being prevented from speaking. Indeed, in Gniotek, the plaintiff police officers refused to speak on the grounds that they might incriminate themselves. 808 F.2d at 245. Even in this situation, the Court ruled that they still had the opportunity to be heard and therefore, had received due process. Id. We find likewise.
Based on the above, we find that there is no genuine issue of material fact that Frederick received the process due to him before he was terminated and accordingly, grant SEPTA's Motion for Summary Judgment and deny Frederick's Motion. Given that ruling, Frederick's Motion for Partial Summary Judgment on damages is denied as moot, as is SEPTA's Motion to Strike Portions of the Amended Complaint.
An appropriate Order follows.
AND NOW, this 29th day of February, 1996, upon consideration of SEPTA's Motion for Summary Judgment and responses thereto, the Motion is hereby GRANTED and Summary Judgment is hereby entered in favor of SEPTA and against Christopher Frederick. Further, upon consideration of Plaintiff's Cross Motion for Partial Summary Judgment and responses thereto, the Motion is hereby DENIED. Finally, Plaintiff's Motion for Partial Summary Judgment and SEPTA's Motion to Strike Part of Frederick's Amended Complaint are hereby DENIED as MOOT.
BY THE COURT:
J. CURTIS JOYNER, J.