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October 5, 2005.

JOHN W. THOMPSON, individually and in his capacity as Superintendent of the City of Pittsburgh Public Schools and the PITTSBURGH BOARD OF PUBLIC EDUCATION and the CITY OF PITTSBURGH SCHOOL DISTRICT, Defendants.

The opinion of the court was delivered by: TERRENCE McVERRY, District Judge


Presently before the Court is the MOTION PURSUANT TO FED.R.CIV.P. 50(A) FOR JUDGMENT IN FAVOR OF DEFENDANTS AS A MATTER OF LAW filed by Defendants, and the Plaintiff's response in opposition. For the reasons that follow, the Motion will be granted.


  Section 1983 of title 42 of the United States Code does not create substantive rights, but rather provides a remedy for the violation of rights created by federal law. City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985). A prima facie case under § 1983 requires a plaintiff to demonstrate: (1) a person deprived him or her of a federal right; and (2) the person who deprived him or her of that right acted under color of state or territorial law. Gomez v. Toledo, 446 U.S. 635, 640 (1980). Thus, if there is no violation of a constitutional right, the claim cannot succeed. Plaintiff alleges that the disciplinary action taken against her by the Defendants (i) violated her Procedural Due Process rights under the United States Constitution when Defendants suspended her without a School Board hearing; (ii) violated her Equal Protection rights in that the discipline imposed upon Plaintiff exceeded that meted to others in similar situations; and (iii) violated her First Amendment rights because the discipline was in retaliation for her speech and association. Plaintiff's claims will be addressed seriatim.

  A. Procedural Due Process

  The Fourteenth Amendment forbids state actors from depriving persons of life, liberty, or property without due process of law. U.S. Const. amend. XIV, § 1. Plaintiff alleges that Defendants violated her procedural due process rights and deprived her of her property rights when they suspended her without pay without first being afforded a hearing before the School Board.

  Due process requires that adequate procedures accompany government action which potentially infringes upon a property interest. The first issue in a procedural due process inquiry is whether a due process interest was at stake. Only upon a finding of a protected interest does the court inquire into whether the deprivation was without due process. Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000); Cospito v. Heckler, 742 F.2d 72, 80 (3d Cir. 1984).

  It is undisputed that, as a tenured teacher with the City of Pittsburgh School District, Plaintiff had a protected property interest in her employment. Thus, the Court turns its attention to whether Plaintiff's suspension without a hearing was without due process. "In order to state a claim for failure to provide due process, a plaintiff must have taken advantage of the processes that are available to him or her, unless those processes are unavailable or patently inadequate." Alvin, 227 F.3d at 116. The United States Supreme Court has ruled that "due process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstance." Gilbert v. Homar, 520 U.S. 924, 930 (1997) (quoting Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886, 895 (1961)). Rather, "[d]ue process is flexible and calls for such procedural protections as the particular situation demands." Gilbert, 520 U.S. at 930 (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). "If there is a process on the books that appears to provide due process, the plaintiff cannot skip that process and use the federal courts as a means to get back what he wants." Alvin, 227 F.3d at 116 (citing McDaniels v. Flick, 59 F.3d 446, 460 (3d Cir. 1995)). Further, our Third Circuit Court of Appeals has held that where grievance and arbitration procedures are in place, those procedures satisfy due process requirements "even if the hearing conducted by the Employer . . . [was] inherently biased." Dykes v. SEPTA, 68 F.3d 1564, (3d Cir. 1995) (quoting Jackson v. Temple University, 721 F.2d 931 (3d Cir. 1983)).

  It is black letter law that a labor union serves as the exclusive representative of its members in all matters related to hours, wages and terms and conditions of employment, particularly those set forth in a collective bargaining agreement. Jackson v. Temple Univ., 721 F.2d 931, 933 (3d Cir. 1983). Plaintiff was a member of the Pittsburgh Federation of Teachers (the "Union"), the teachers union which has a collective bargaining agreement with the Pittsburgh Board of Public Education. That labor agreement contains a final and binding grievance-arbitration procedure, as mandated by Act 195, commonly known as the Public Employee Relations Act ("PERA"). Pa. Stat. Ann., tit. 43, § 1101.903. It is a fundamental principle that "a collective bargaining agreement constitutes a contract. Accordingly, any rights and remedies possessed by the union and the employer, as parties to the agreement, and by the employee, as a third-party beneficiary thereof, ultimately derive primarily from the language of the agreement itself." Kozura v. Tulpehocken Area Sch. Dist., 791 A.2d 1169, 1173 (Pa. 2002).

  The CBA entered into between the Union and the Pittsburgh Board of Public Education defines "grievance" in pertinent part as follows:
A grievance is a difference concerning:
1. a deviation from, or an interpretation or an application of, an administration-approved practice, a system-wide established practice, or a Board-adopted policy, relating directly to those working conditions of teachers that are proper subjects for bargaining under Act 195; or
2. an arbitrary or capricious change in any of the same; or
3 compliance, interpretation, or application of any existing law, rule, regulation or policy which relates to or involves the professional employee(s) in the exercise of his/her or their assigned duties; or
4. a violation, interpretation, application, or meaning of any provision of this Agreement.
Part C, Personnel Procedures — Article 27, Grievances and Arbitration Procedures.

  Further, Article 27 of the CBA establishes a four-step grievance procedure which provides for the filing of a grievance with the employer (Level One)*fn1 through the submission of the dispute to arbitration for a hearing (Level 4). In addition, and relevant to this litigation, the CBA provides that before differences become formalized grievances, the parties should engage in discussions "to resolve any prospective grievance."*fn2

  The Procedures section of the CBA concludes with the following paragraph:
23. Nothing contained in this grievance procedure is intended to restrict or limit the rights of any individual as provided under Section 606 of Act 195, effective October 21, 1970.
Part C, Personnel Procedures — Article 27, Grievances and Arbitration Procedures, at ¶ 23.
  Also extremely relevant to this discussion is the "election of remedies" provision of Section 11-1133 of the Public School Code, which provides, in pertinent part, as follows:
Professional employees shall have the right to file a grievance under the collective bargaining agreement or request a hearing pursuant to § 1121 through 1132, but not both.
Pa. Stat. Ann. tit. 24 § 11-1133 (emphasis added). Section 11-1133 applies to both teacher termination and teacher suspension proceedings. Altoona Area Vo-Tech Educ. Assn v. Altoona Area Vo-Tech, 559 A.2d 974 (Pa. Commw.), alloc. denied, 575 A.2d 569 (Pa. 1989). In Pederson v. South Williamsport Area School District, 677 F.2d 312 (3d Cir.), cert. denied, 459 U.S. 972 (1982), the Court of Appeals for the Third Circuit has held that the grievance provisions in a collective bargaining agreement between a school district and a teachers union were a valid alternative to a Board hearing and fully satisfied the due process requirements of the Fourth Amendment.

  Plaintiff argues that she never formally filed a grievance and, thus, she was entitled to a pre-suspension hearing before the School Board. In response, Defendants vigorously argue that in accepting union representation and, more importantly, in accepting the settlement agreement, which was initially proposed by her Union representative and Union counsel to the School District, Plaintiff clearly elected to engage in ...

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