The opinion of the court was delivered by: Thomas M. Golden, J.
MEMORANDUM OPINION AND ORDER
Plaintiff brought this action under 42 U.S.C. § 1983, claiming his former employer, the County of Lehigh (the "County"), violated the Fourteenth Amendment by depriving Plaintiff of his property interest in his job without due process of law. Plaintiff also alleges that his union, AFSCME, Local 3206 ("Local 3206") breached its duty of fair representation when it failed to file a grievance on Plaintiff's behalf. Presently before the Court is the County's Motion to Dismiss Counts I and II of the Amended Complaint and Local 3206's Motion to Dismiss Count III of the Amended Complaint. Both motions are brought under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. For the reasons which follow, the motions are granted.
For purposes of a Rule 12(b)(6) motion, the Court accepts the allegations in the Amended Complaint as true and draws all inferences in favor of the Plaintiff. Plaintiff worked as an Adult Probation Officer for the Lehigh County Adult Probation Department from July 23, 2002 until the time he claims he was constructively discharged on June 1, 2007. Am. Compl. at ¶¶ 6,16. At the time of his discharge, Plaintiff was a member of the collective bargaining unit, Local 3206. Id. at ¶ 21. The terms and conditions of Plaintiff's employment were governed by the Collective Bargaining Agreement ("CBA") between the County and Local 3206. Plaintiff was constructively discharged for falsifying case records. Plaintiff tried to file a grievance with the County contesting his discharge, but the County informed him that his grievance was not filed in a timely manner. Id. at ¶17. He then filed a grievance with the Court of Common Pleas, but the grievance was denied. Id. at ¶¶17-20. Local 3206 did not contest Plaintiff's discharge under the CBA Id. at ¶¶ 45-48, 51.*fn1
In his Amended Complaint, Plaintiff alleges that he maintained a property interest in his job as an Adult Probation Officer since, pursuant to the CBA, he was a tenured employee not subject to employment at-will. Id. at ¶ 23. Plaintiff claims in Count I that the County deprived him of his property right in his job without due process of law, in violation of the Fourteenth Amendment, when it "constructively discharged" him and failed to give him a hearing or allow him to prosecute a grievance in accordance with the CBA. Id. at ¶¶ 25-33.
In its Motion to Dismiss Count I, the County argues that Plaintiff has absolutely no property interest in his job because he was never a tenured employee, but at all times was an employee at-will. The County contends that since Plaintiff never had a property interest in his job, Plaintiff could be terminated at any time without due process of law. To have a protected property interest in a job, Plaintiff must show that he has a legitimate entitlement to continued employment. Elmore v. Cleary, 399 F.3d 279, 282 (3d Cir. 2005)(citing Bd. of Regents of State College v. Roth, 408 U.S. 564, 577 (1972)) . "[O]nly two types of contract have been found to be property protected by the Fourteenth Amendment. The first is a contract that confers a protected status, such as a tenure contract providing for permanent employment. The second is a contract explicitly providing that it may be terminated only for cause. " Sanquingi v. Pittsburgh Board of Public Education, 967 F.2d 393, 401 (3d Cir. 1992). A showing that state law has created a legitimate expectation of continued employment, a public employee is presumed to be an at-will employee. Cooley v. Phila. Hous. Fin. Agency, 830 F.2d 469, 471 (3d Cir. 1997). An at-will employee does not have a legitimate entitlement to continued employment because he serves solely at the pleasure of his employer. Chabal v. Reagan, 841 F.2d 1216, 1223 (3d Cir. 1988).
Plaintiff's claim that he had a property interest in his job because he was a tenured employee under the CBA is without merit. To the contrary, Plaintiff was at all times an employee at-will. Specifically, Article II of the CBA provides that "[n]othing in this Agreement shall be construed to mean that an employee or group of employees has a right, inherent or otherwise, to any job or work." See CBA at 5. Article III, Section 1 of the CBA, reserves to the County and the Court of Common Pleas "the rights, in accordance with their sole and exclusive judgment and discretion: to reprimand, suspend, discharge or otherwise discipline employees..." Id. Finally, Section 3 of Article III of the CBA states: it is specifically agreed that nothing in this Agreement shall, in any way, affect the rights of the Court, the Judges, and other County officers with respect to...discharging...employees as guaranteed in the County Code, including Section 1620 thereof, the Pennsylvania Constitution and the various court decisions pertaining thereto. In the event any of the terms or provisions of this Agreement transgress or infringe upon the right of the Court, the Judges, or other County officers, such terms and provisions of this Agreement shall not be applicable to the employees involved.
As a result, Plaintiff was at all times an at-will employee who could be discharged at the sole discretion of the Court of Common Pleas of Lehigh County and, therefore, did not have a property interest in his job as an Adult Probation Officer.
In addition, any language in the CBA governing Plaintiff's employment that would arguably restrict the ability of the Court of Common Pleas to dismiss its employees would be unenforceable under Pennsylvania law. CBAs, which are governed by the Pennsylvania Public Employee Relations Act 43 P.S. §§1101.101, et seq, (PERA), may not encroach upon the right of the judiciary to discharge judicial employees. See Eshelman v. Commissioners of Berks County, 436 A.2d 710, 712 (Pa.Cmwlth. 1981); Beckert v. American Federation of State, County & Municipal Employees, 425 A.2d 859, 862-63 (Pa.Cmwlth. 1981).
In Beckert, a judicial employees union complained to the Pennsylvania Labor Relations Board that the Court of Common Pleas of Bucks County violated PERA by terminating a judicial employee without following the termination procedures outlined in the CBA.. Beckert, 425 A.2d at 860-61. The Court of Common Pleas filed suit to enjoin the Board from attempting to enforce the CBA, on the grounds that the termination procedures violated the Pennsylvania Constitution's doctrine of separation of powers. Id. at 861. The court stated that although PERA gave judicial employees the right to bargain collectively regarding the financial terms of employment, PERA cannot be interpreted as "immunizing employees from the inherent power of discharge." Id. at 863. The court reasoned that "the discharge of a judicial employee is a judicial power vested by our Constitution in the courts. That power may not, consistent with the constitutional doctrine of separation of powers, be policed, encroached upon, or diminished by another branch of government." Id. at 862. See also Eshelman 436 A.2d at 712 ("[T]he collective bargaining process must not infringe upon the judges' authority to select, discharge, and supervise court personnel.")
Here, like in Beckert, Plaintiff claims that he was unlawfully discharged because the Court of Common Pleas did not follow the termination procedures outlined in the CBA. According to the precedent set forth in Beckert, any terms that the CBA contains that restrict the ability of the Court of Common Pleas to dismiss its employees at-will are unenforceable because they are inconsistent with the state constitutional doctrine of separation of powers and the unqualified power to discharge judicial employees.
Because a CBA between judicial employees and a Pennsylvania court may not alter the at-will employment status of judicial employees, the Plaintiff cannot contend that the CBA gives him a property interest in his job.
Plaintiff cites Montross v. Hatboro Borough, 2002 WL 32341779 (E.D.Pa.) and Hughes v. City of Bethlehem, 2007 WL 954120 (E.D.Pa.) for the proposition that mere membership in a collective bargaining unit gives the employee a property interest in his job. (Pl. Response to Mot. To Dismiss at 6, 9-10). However, these cases hold that "just cause" employment status arises not from the mere fact that Plaintiff's employment was governed by a CBA, but from the specific terms of the CBA that expressly provided that employees could only be fired for "just cause." See Montross at *2 ("[C]ollective bargaining agreement specifically states that an employee cannot be fired for disciplinary ...