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 ...