United States District Court, W.D. Pennsylvania
October 5, 2005.
BETH LYNN BOYSZA, Plaintiff,
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
MEMORANDUM OPINION AND ORDER OF COURT
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
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
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
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
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;
4. a violation, interpretation, application, or
meaning of any provision of this Agreement.
Part C, Personnel Procedures Article 27, Grievances and
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
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 "prospective
grievance" discussions as permitted by the CBA and, thus, had no
right to a Board hearing. See Article 27, Procedure 1.
In further support of their position, Defendants argue that "a
`grievance' does not have to be in writing. For Plaintiff to
claim that the grievance procedures were never invoked would
ignore the language and intent of the Agreement and is contrary
to the record evidence of the [Union's] persistent and active
representation of Plaintiff from April to August, 2003." Defs'
Mot., at 6-7. Defendants contend that a "grievance" as defined by
the CBA, is simply a dispute or "difference concerning (1) a
deviation from, or an interpretation of 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; . . . ." Based on the record evidence presented at this trial, and
viewed in the light most favorable to Plaintiff, it appears clear
to the Court that Plaintiff, through her Union, engaged in
prospective grievance discussions with the School District in
accordance with the CBA, which resulted in the execution of a
Settlement Agreement by the parties in August, 2003. Both Jody
Spolar and Vicki Beatty testified that the majority of employment
grievances are never formally filed in writing; rather the
majority of these disputes/grievances are handled under CBA Step
The record is clear that Plaintiff, upon being notified that
she was to be disciplined for her actions while administering a
diagnostic test, immediately involved and/or accepted the
involvement of the representatives of her Union, the Pittsburgh
Federation of Teachers, her exclusive bargaining agent, who were
involved in each and every step of the disciplinary process. The
Union was involved on behalf of Plaintiff from the very first
meeting in Principal Folino's office on Tuesday, April 8, 2003,
at which the Union's building representative, Arlene Fenster, was
present. Immediately thereafter, Nina Esposito Visgitis, the
union representative, was called to Horace Mann Elementary School
to discuss Plaintiff's alleged conduct. On that day, Ms. Esposito
Visgitis and Plaintiff spoke privately about the allegations. On
April 16, 2003, Ms. Esposito Visgitis, along with Plaintiff,
attended the initial Critical meeting with Ms. Spolar and others,
at which time Plaintiff gave a general overview of the testing
situation and explained why she had used post-its.
On May 2, 2003, Ms. Esposito Visgitis and Plaintiff, attended a
second Critical Incident meeting with Ms. Spolar and others, at
which time the actual test booklets were brought to the meeting
and examined by both Ms. Esposito Visgitis and Plaintiff. On May
13, 2003, Ms. Esposito Visgitis wrote to Steve Jordan, the attorney for the
Union, and apprised him of the situation. Thereafter, Mr. Jordan
met with Plaintiff and Ms. Esposito Visgitis to discuss possible
resolution of the matter and negotiated with the School District
on Plaintiff's behalf. Initially, Mr. Jordan proposed to the
School District that Plaintiff receive a one-semester suspension,
but such proposal was rejected as the School District was
contemplating a one-year suspension. However, after further
negotiations over the next two months, the School District agreed
to a one-semester suspension provided that "the parties agree
that this settlement is based upon the facts of this case and
nothing contained herein shall limit the School District's
ability to implement other disciplinary outcomes in other
cases. . . ."
On August 10, 2003, Plaintiff executed a Settlement Agreement
in which she agreed to "be suspended without pay for the first
semester of the 2003-2004 school year." Attached to the
Settlement Agreement, however, was a letter from Plaintiff to her
attorney Steve Jordan in which Plaintiff advised him that "she
did not agree with the punishment offered . . . But I am forced
to accept." The Board President and Elected Board Members were
copied on the letter.
Vicki Beatty, attorney for the School District, testified that
immediately upon receipt of the Settlement Agreement and the
appended letter from Plaintiff, she telephoned Steve Jordan and
inquired whether they had an agreement. She was assured during
that conversation that "they had a deal." Thereafter, the
Settlement Agreement was executed by Nina Esposito Visgitis on
behalf of the Union and Dr. Thompson, on behalf of the School
Interestingly, at no time prior to her execution of the
Settlement Agreement did Plaintiff ever repudiate her
representation by the Union nor did she ever request or demand a
hearing. Plaintiff now argues that "both state law and the
applicable CBA" guarantee Plaintiff's right to a board hearing. However, as stated earlier, pursuant to Section
11-1133 of the School Code, "a professional employe shall the
right to file a grievance under the collective bargaining
agreement or request a hearing . . . but not both." (emphasis
Case law provides that settlement of grievances short of
arbitration is to be fostered as a peaceful and efficient means
of resolving workplace disputes and unions are typically entitled
to reach such agreements on behalf of their members, even over
their members objections. Bolden v. SEPTA, 953 F.2d 807, 825-29
(3d Cir. 1991), cert. denied, 504 U.S. 943 (1992). In fact, our
appellate court, as well as Pennsylvania state courts, has
recognized that public employees whose rights are settled under a
labor contract do not have a right to a "second bite" of the Due
Process apple by also proceeding in federal court. Rather, if the
employee proves that the union breached its duty of fair
representation, the employee may proceed in state court. See
Bolden, 953 F.2d at 829; Cady v. Twin Rivers Towing Co.,
486 F.2d 13335, 1338 (3d Cir. 1973); Dorfman v. PSSU-Local 668,
752 A.2d 933 (Pa. Commw. 2000); Moshannon Valley School District v.
PLRB, 597 A.2d 299 (Pa. Commw. 1991), alloc. denied,
609 A.2d 170 (Pa. 1992) (settlement short of arbitration of teacher
dismissal was binding and conclusive, with no subsequent Board
hearing required or permitted).
The CBA at issue clearly provided for "discussions" of "any
prospective grievance . . . before differences become formalized
grievances." The evidence at trial establishes that Plaintiff,
assisted by Union representatives, engaged in these
"discussions," which culminated in the execution of a Settlement
Agreement by the parties in August 2003.
For these reasons, the Court finds and rules that the
administrative process in place "appears to provide due process,"
that Plaintiff actively engaged in prospective grievance discussions pursuant to Step 1 of the CBA, and thus, pursuant to
§ 11-1133, Plaintiff had no right to a Board hearing. Further,
because there is no violation of a constitutional right,
Plaintiff's due process claim cannot succeed and Defendants are
entitled to judgment as a matter of law.
B. Equal Protection and Retaliation
Plaintiff's remaining two claims both challenge the
disciplinary action taken against her by Defendants. Clearly,
Plaintiff's claim of an Equal Protection violation for unequally
harsh discipline is inextricably intertwined with the overall
grievance process and Union settlement. Likewise, Plaintiff's
claim that she received a "grossly disproportionate" discipline
as a result of statements she made or associations she may have
had with a School Board member, is also intertwined with the
grievance process and Union settlement. Interestingly,
Plaintiff's attorney told the School District, in writing, that
"her claims" were within the Union's duty of representation.
Therefore, they are necessarily related to the terms of her
employment as controlled by the labor agreement.
In Dykes, the court of appeals held that the employee's
assertions that a drug testing policy violated the
Fourth Amendment were to be resolved under the labor contract, in that
all reasonableness of such policies is routinely a matter dealt
with in such proceedings. Dykes, 68 F.3d at 1570. Like the
Fourth Amendment claim in Dykes, Plaintiff's claims of
violations of the Equal Protection Clause and the
First Amendment, arise under the labor contract relationship.
Plaintiff, through her Union, entered into an agreement resolving
the disciplinary action against her. As stated supra,
settlements (even of Constitutional claims) arrived at through a
labor union are binding, absent proof of a breach of the union's duty of fair
representation. Accordingly, Plaintiff cannot now claim that her
Constitutional rights were violated.
For these reasons, Defendants' Motion for Judgment as a Matter
of Law will be granted as to Plaintiff's claims of violations of
the Equal Protection Clause and the First Amendment.
The School Code and the CBA provided a choice of "processes"
for Plaintiff she had the right to file a grievance under her
CBA or request a hearing but not both. Plaintiff elected to
utilize her union and engage in CBA Step 1 "prospective
grievance" discussions which culminated in a negotiated
settlement of the matter. In August 2003, Plaintiff signed a
valid Settlement Agreement which resolved the issues surrounding
her discipline. Thereafter, she had no further right to a hearing
on the matter. She cannot now claim that due process was not
afforded to her or that her Constitutional rights were otherwise
An appropriate Order follows. ORDER OF COURT
AND NOW, this 5th day of October, 2005, in accordance with the
foregoing Memorandum Opinion, it is hereby ORDERED, ADJUDGED AND
DECREED that the Motion Pursuant to Fed.R.Civ.P. 50(a) for
Judgment In favor of Defendants as a Matter of Law is hereby
Judgment as a matter of law is hereby entered against
Plaintiff, and in favor of all Defendants, on all Counts and
claims of the Plaintiff. This civil action is dismissed with
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