The opinion of the court was delivered by: Judge Vanaskie
On March 31, 2004, Plaintiff Robert A. Hilborn received written notice that he had been suspended without pay from his position as Deputy Warden of the Lackawanna County Prison "[a]s a result of the pending criminal charges . . . ." It is undisputed that criminal charges were filed against Mr. Hilborn on March 30, 2004. He brought this action on January 27, 2006, at which time criminal charges against him were still pending. Mr. Hilborn asserts that as a result of his suspension, he had, "in effect, been constructively discharged" without "proper notice of the charges for his termination, or the opportunity for a hearing." (Compl., Dkt. Entry 1, ¶¶ 32-33.) He also asserts a claim under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601-2654, arising out of the failure to receive appropriate information when he applied for and took leave for medical reasons at the end of January, 2004.
Before the Court is the Motion to Dismiss filed by Defendants Robert C. Cordaro, A.J. Munchak, Randy A. Castellani, County of Lackawanna ("County"), Paul L. Jennings, James T. Wynder Jr., Andrew J. Jarbola, Honorable Chester T. Harhut, John Mellow, John Szymanski, the Lackawanna County Prison Broad ("Prison Board"), and Anthony Bernardi.*fn1 (Dkt. Entry 12.) Among other issues, Defendants assert that Plaintiff's due process claim fails because he did not have a protected property interest in his employment, and his FMLA claim fails because he was not harmed by the absence of notice of his FMLA rights as required by statute and regulations. Finding merit in these arguments, the Court will grant Defendants' motion to dismiss.*fn2
Mr. Hilborn worked for the County for approximately twenty-nine (29) years, most recently as the Deputy Warden of the Prison.*fn3 (Am. Compl., Dkt. Entry 5, ¶ 23.) On January 28, 2004, Mr. Hilborn submitted a written application for FMLA leave to Defendant Wynder, the interim warden of the Prison. (Id. ¶ 25.) At the time of the request, Mr. Hilborn had been employed as Deputy Warden for at least 1,250 hours during the preceding twelve (12) months. (Id. ¶ 27(a).) Mr. Hilborn included a certification from his doctor, Joseph F. Philbin, M.D., that indicated Mr. Hilborn had been diagnosed with a serious medical condition rendering him incapable of performing his job duties. (Id. ¶¶ 26, 27(c).) Mr. Hilborn never received a response to his FMLA leave request from Defendant Wynder or anyone else. (Id. ¶ 28.) Despite the lack of a response, Mr. Hilborn took leave on or about January 28, 2004. (See id. ¶ 23 (stating that Mr. Hilborn worked for the County through January 28, 2004).)
On March 31, 2004, Mr. Hilborn was notified that he was suspended without pay. (Id. ¶ 29.) The notice, written by Defendant Jennings -- the warden of the Prison -- and dated March 30, 2004, stated:
As a result of the pending criminal charges, you have been suspended without pay. Therefore, I am requesting that any and all county property/issue be returned to the prison through your attorney. Additionally, I extend an offer to collect any of your valuables presently at the prison, again through the services of your attorney.
If so desired, please have [your attorney] contact this office to arrange for both the return of county property/issue and the removal of any of your personal items. (Id.)*fn4 Mr. Hilborn was advised further that, because of the suspension and consequent loss of benefits, he could obtain medical coverage through COBRA. (Id. ¶ 32.) Mr. Hilborn was not afforded a hearing before or after the suspension. (Id. ¶ 35.)
At the time he filed the Amended Complaint on February 17, 2006, Mr. Hilborn's employment status with the County was unresolved. (Id. ¶ 30.) In his brief in opposition to Defendants' Motion to Dismiss, Mr. Hilborn represents that he "pled guilty and [was] sentenced on October 18, 2006, presumably for the criminal acts that were the basis for his suspension." (Pl.'s Br. Resp. Defs.' Mot. Dismiss, Dkt. Entry 27, at 4.)*fn5 At no time has a hearing been held in connection with Mr. Hilborn's removal from the position of Deputy Warden.
Mr. Hilborn's Amended Complaint asserts that he "enjoyed a constitutionally protected interest in his County government position under the County Charter/Administrative Code, the Collective Bargaining Agreement." (Am. Compl. ¶ 39.) The County and the American Federation of State, County, and Municipal Employees ("AFSCME")*fn6 entered into a collective bargaining agreement ("CBA") that governed the "wages, hours, and other terms and conditions of employment for all regular full-time and regular part-time employees employed by the County at the [Prison]." (CBA, Ex. A. to Defs.' Br. Supp. Mot. Dismiss, Dkt. Entry 15-2, at 1.)*fn7 Among other things, the CBA requires "just cause" to discipline employees and provides a grievance procedure to appeal disciplinary action. (Id. at 31-34.)
The grievance procedure consists of three steps. First, the employee or the union must present a written grievance to the warden within ten (10) calendar days of the disciplinary decision. (Id. at 32.) If the employee is dissatisfied with the warden's decision, he may appeal to the County commissioners within five (5) calendar days. (Id. at 32-33.) If the employee disagrees with the commissioners' decision, he has the right, through the union, to submit the grievance to arbitration. (Id. at 33.) The arbitrator's decision is final and binding on all parties. (Id. at 34.)
As Deputy Warden, Mr. Hilborn was excluded from the CBA's coverage: "The bargaining unit . . . excludes the . . . Deputy Warden . . . ." (Id. at 1.) He was, however, required to pay a "fair share" fee to AFSCME. (Am. Compl. ¶ 24.)
In this regard, the CBA was negotiated by AFSCME, but it covers all employees within the bargaining unit, whether they are members or non-members of AFSCME. The members pay dues to AFSCME, while non-members pay a "fair share" fee, which equals "the regular membership dues required of members of the Union less the costs for the previous fiscal year of the Union's activities and undertakings which were not reasonably employed to implement or effectuate the duties of the Union as the exclusive representative of the members." (CBA, at 4-5.) See also 43 Pa. Stat. Ann. § 1102.2 (defining "fair share fee"). A fair share fee compensates the labor union for its representation of the non-member employees in collective bargaining with the employer. The union dues and fair share fees are deducted from the employees' pay by the employer and then remitted to the union. (CBA, at 4-5.) Pennsylvania law authorizes the payment of a fair share fee by non-members to a union when a fair share fee is provided for in the collective bargaining agreement. 43 Pa. Stat. Ann. § 1102.3. The CBA requires non-members to pay a fair share fee to AFSCME. (See CBA, at 5.)
Mr. Hilborn commenced this litigation by filing a Complaint in this Court on January 27, 2006. (Dkt. Entry 1.) He filed an Amended Complaint as of right on February 17, 2006. (Dkt. Entry 5.) See Fed. R. Civ. P. 15(a). The Amended Complaint consists of three counts. In Count I, Mr. Hilborn asserts a claim under 42 U.S.C. § 1983, alleging that all Defendants -- individual and governmental -- violated the Fourteenth Amendment to the United States Constitution by removing him from employment without a pre- or post-termination hearing. He also alleges that his suspension violated the Pennsylvania Constitution. In Count II, Mr. Hilborn asserts a claim under Monell v. Department of Social Services, 436 U.S. 658 (1978), against the County and Prison Board in connection with the procedural due process claim. In Count III, he ...