The opinion of the court was delivered by: Joy Flowers Conti United States District Judge
On March 23, 2009, the court granted two summary judgment motions in favor of defendants Washington County, Cathi Kresh, Jeanie Rydzak, Tom Jess, the Honorable Debbie O‟Dell Seneca, Washington County Court of Common Pleas, and Washington County Domestic Relations Office (collectively referred to as "defendants"), and against plaintiff Karen A. Walters ("plaintiff"). On April 20, 2009, plaintiff filed a motion for reconsideration (Doc. No. 75), requesting that the court reconsider its decision granting the summary judgment motions. Two days later, on April 22, 2009, plaintiff filed a notice of appeal with the Court of Appeals for the Third Circuit. (Doc. No. 77.) On July 30, 2009, the Court of Appeals for the Third Circuit granted a motion to remand appeal to the district court so that the district court could rule on the motion for reconsideration. (Doc. No. 81.) After remand, this court granted the motion for reconsideration, and requested the parties submit additional briefing. (Doc. No. 82.) The court now reconsiders its decision on the summary judgment motions, in light of additional evidence that was not presented to the court prior to its decision. Taking into consideration this evidence, plaintiff‟s supplemental brief in opposition to defendants‟ motions for summary judgment (Doc. No. 83), defendants‟ reply brief to plaintiff‟s supplemental brief (Doc. No. 85), plaintiff‟s supplemental reply (Doc. No. 84), and the other filings of record, the court finds that plaintiff failed to adduce sufficient evidence of a property interest in her position, and will grant summary judgment in favor of defendants and against plaintiff with respect to her procedural due process claims brought pursuant to 42 U.S.C. § 1983.
I. Previous Findings in the March 23, 2009 Opinion
In the March 23, 2009 memorandum opinion, the court set forth its reasons for granting the summary judgment motions with respect to plaintiff‟s § 1983 claim of deprivation of due process. (Mem. Op. (Doc. No. 73).) The court examined plaintiff‟s collective bargaining agreement, which was labeled Exhibit B, in order to determine whether plaintiff adduced sufficient evidence to establish a property interest in her employment; the court noted that page 7 and page 37 of Exhibit B were not included. (Id. at 37.) Based upon the record before it, the court held that plaintiff did not adduce sufficient evidence of a property interest in her position to create a genuine issue of material fact. (Id. at 38.) The missing pages are now before the court, which plaintiff asserts implicate a just cause provision. In the alternative, plaintiff argues there is a practice by Washington County requiring just cause for termination. Defendants argue there is no just cause provision in the agreement and that the practice described does not create a property interest in plaintiff‟s position. Upon review of relevant Pennsylvania law, including the Pennsylvania constitutional separation of powers among the judicial, legislative, and executive branches of government, the court must conclude that even assuming there is a just cause provision in the collective bargaining agreement between Washington County and the union, a plaintiff‟s failure to adduce evidence that the other alleged joint employer, the Washington County Court of Common Pleas, affirmatively created the just cause provision requires that summary judgment be entered in defendants‟ favor with respect to the § 1983 procedural due process claim.
""To have a property interest in a job... a person must have more than a unilateral expectation of employment; rather, she must have a legitimate entitlement to such continued employment.‟" Hill v. Borough of Kutztown, 455 F.3d 225, 234 (3d Cir. 2006) (quoting Elmore v. Cleary, 399 F.3d 279, 282 (3d Cir. 2005)). State law governs whether a property interest exists. See Curry v. Pa. Turnpike Com‟n, 843 F. Supp. 988, 990 (E.D. Pa. 1994). Plaintiff alleges that a just cause provision in the collective bargaining agreement between Washington County and the local union, Service Employees International Union, AFL-CIO Local 585, granted her a protected property interest in her employment as a clerk-typist II.
In Pennsylvania, a public employer can only create a property interest in employment if there is a grant of legislative authority to do so. See Scott v. Phila. Parking Auth., 166 A.2d 278 (Pa. 1961) (holding that the Philadelphia Parking Authority could not enter into a three-year employment contract, because the legislature did not grant it the power to confer tenure); Bolduc v. Bd. of Supervisors, 618 A.2d 1188, 1190 (Pa. Commw. Ct. 1992). The Public Employee Relations Act ("PERA"), 43 PA. CONS. STAT. §§ 1101.101 et seq., authorizes and regulates collective bargaining between public employers and employees. The PERA authorizes public employers in Pennsylvania to enter into collective bargaining agreements containing for cause provisions and other limitations on the ability to dismiss summarily employees. See Bd. of Educ. v. Phila. Fed‟n of Teachers, 346 A.2d 35, 38-41 (Pa. 1975). Plaintiff argues that the collective bargaining agreement in this case restricted her joint employers‟ ability to terminate her employment.
Plaintiff focuses upon several provisions in the collective bargaining agreement. Plaintiff also relies upon deposition testimony of Pete Lorenzo, Washington County‟s union steward, and an affidavit of Dennis Walters, her husband and former Washington County employee, in arguing that the agreement afforded just cause protection to plaintiff. Even assuming that the collective bargaining agreement included a just cause provision and crediting the testimony of Pete Lorenzo and Dennis Walters, the court must conclude that under Pennsylvania law plaintiff was an at will employee.
The court in the March 23, 2009 memorandum opinion explained its reason for determining that a reasonable jury could find that Washington County was a joint employer of plaintiff along with the Washington County Court of Common Pleas. (Mem. Op. at 36-37.) Washington County, however, is not the sole employer. This court must consider the implications of the other joint employer being the Washington County Court of Common Pleas.
Plaintiff‟s claim at issue is based upon § 1983, and, in analyzing whether plaintiff has a property interest in continued employment, the court must turn to state law. Under Pennsylvania law, a collective bargaining agreement entered into between a county and union cannot create an entitlement to continued employment for employees of the judicial branch, even if the employees are jointly employed by both the county and that county‟s local court.
Two Pennsylvania Supreme Court decisions which were issued prior to the latest amendments to the County Code, 16 PA. CONS. STAT. §§ 101 et seq. -- Sweet v. Pennsylvania Labor Relations Board, 322 A.2d 362 (Pa. 1974), and Costigan v. Philadelphia Finance Department Employees Local 696, 341 A.2d 456 (Pa. 1975) -- provide helpful background.
In Sweet, the Pennsylvania Supreme Court considered whether a court of common pleas or a county was the employer of court-related employees. In that case, the Service Employees International Union, Local 585 wanted to enter into a collective bargaining agreement on behalf of "all court-related employees of Washington County." Sweet, 322 A.2d at 363. The union petitioned the Pennsylvania Labor Relations Board for representation of those employees; the petition alleged that the public employer was Washington County acting through the county commissioners. The board granted the petition. The judges of the Washington County Court of Common Pleas claimed to be the public employer, but they were not sent a copy of the petition. After the commencement of negotiations, the judges filed a petition to intervene, which the Pennsylvania Labor Relations Board denied as being not timely filed. The judges filed a lawsuit over the matter. Id. The Pennsylvania Supreme Court held that the judges of the Washington County Court of Common Pleas were "at least [a]n employer of [s]ome of the employes included in the bargaining unit comprised of court-related employes." Id. at 365. It noted that relevant considerations included whether a party has the right to hire the employee, the power to discharge the employee, the power to direct the tasks done and the manner in which those tasks are done, and the duty to compensate the employee. Id.
In Costigan, a number of employees of the Register of Wills authorized a union as their exclusive bargaining representative. Shortly afterward, Robert Costigan ("Costigan") was elected as the new Register of Wills. Costigan, 341 A.2d at 457-58. Before Costigan took office, however, the incumbent register entered into a collective bargaining agreement with the union that was effective for eighteen months; one term of the collective bargaining agreement provided "employees shall not be disciplined or discharged except for just cause." Id. at 459. The day Costigan took office, he terminated a number of the employees that were in the bargaining unit. The union sought arbitration under the agreement, and Costigan filed an action in equity seeking to enjoin arbitration. The Pennsylvania Supreme Court, after citing Sweet, found that the federal employment law factors for determining employer status that originated with the NLRA were "highly relevant" for determining employer status under the PERA. Id. at 460 n.7. The court concluded that both ...