United States District Court, E.D. Pennsylvania
MEMORANDUM
Juan
R. Sánchez, J.
Plaintiff
Andrew Addeo, a former City of Philadelphia firefighter,
brings claims against the City and the Philadelphia
Firefighters' and Paramedics' Union International
Association of Fire Fighters Local 22 (the Union), arising
out of the termination of his employment with the City
following his second conviction for driving under the
influence while off duty. In his original complaint, Addeo
asserted a “hybrid § 301/duty of fair
representation” claim against both Defendants, but he
has since conceded that this Court lacks subject matter
jurisdiction over this claim under Crilly v. Southeastern
Pennsylvania Transportation Authority, 529 F.2d 1355 (3d
Cir. 1976). Instead, Addeo seeks leave to file an amended
complaint asserting a claim pursuant to 42 U.S.C. § 1983
against the City for violating his procedural due process
rights, and a state law breach of duty of fair representation
claim against the City and the Union. For the reasons set
forth below, Addeo's motion for leave to file an amended
complaint will be granted.
FACTS[1]
Addeo
worked as a firefighter with the City of Philadelphia Fire
Department from April 2004 until September 2015, when his
employment was terminated. During his employment with the
Fire Department, the Philadelphia Firefighters' and
Paramedics' Union International Association of Fire
Fighters Local 22 was the exclusive labor bargaining unit for
firefighters and paramedics employed by the City of
Philadelphia pursuant to a collective bargaining agreement
between the City and the Union.
In
August 2012, Addeo was charged with driving under the
influence (DUI) while off duty. Addeo was sentenced to
participation in the Accelerated Rehabilitative Disposition
program for the DUI offense, and he successfully completed
the program, including paying all fines and costs. The Fire
Department also disciplined Addeo for the offense, imposing a
160hour suspension in duty in August 2012 and a 30-day
reduction in pay in January 2013, pursuant to the applicable
Fire Department directives. Although Fire Department protocol
requires firefighters to report for alcohol counseling and
monitoring, including urine testing, for up to 18 months
after a DUI, this protocol was not followed in Addeo's
case.
In
March 2015, Addeo was again arrested for DUI while off duty.
Addeo proceeded to trial, representing himself, and was
convicted on September 15, 2015, and ordered to report for
incarceration at the Bucks County prison within 24 hours.
That same day, Addeo contacted Ed Marks, a Union official, to
report his conviction and requested that the Union take the
necessary action to protect his employment within the
required seven-day period under the collective bargaining
agreement. The following day, on September 16, 2015, Addeo
called Fire Department Battalion Chief Mark Roundbehler,
reported his arrest and conviction, and provided details
regarding his incarceration.
On
September 18, 2015, the Fire Department notified Andrew
Thomas, the Union President, of the disciplinary action that
would be taken against Addeo as a result of his DUI-a 30-day
suspension with intent to dismiss. The City thereafter
terminated Addeo's employment on September 28, 2015. At
no time prior to Addeo's suspension or termination did
the City afford him an opportunity for a
“Loudermill hearing.”[2]
On
September 23, 2015, five days after receiving notice of the
disciplinary action, the Union filed a Step 1 grievance on
Addeo's behalf, seeking rescission of his dismissal,
reinstatement of his employment as a firefighter, and
compensation for all losses. While Addeo was incarcerated,
from September 16, 2015, to December 15, 2015, the City's
Office of Labor Relations (Labor Relations) held his
grievance open and in abeyance at Step 2 of the grievance
process. The Step 2 process required an appearance by Union
representatives, counsel, and Addeo before the City's
Labor Relations Officer.
On
March 8, 2016, Labor Relations notified Union
representatives, including Thomas, that Addeo's Step 2
grievance had not yet been scheduled and that Labor Relations
had reserved March 23, 2016, as the hearing date. On March
10, 2016, however, Union representatives, including Thomas,
notified Labor Relations that the grievance would not proceed
that month and that the Union would hold the hearing in
abeyance for a later date. Addeo also did not receive a
grievance hearing in April 2016. Union representatives
appeared at Labor Relations prepared to proceed on
Addeo's grievance in early April, only to be told by
Labor Relations and the special investigations officer that
the grievance would not be heard that day. Although a new
hearing date was not set at that time, it appears a hearing
was eventually scheduled for later in the month, as the
complaint alleges that on April 25, 2016, the Union canceled
the hearing, even though Addeo and other Union
representatives “fully expected to proceed.”
See Revised Am. Compl. ¶¶ 40-41.
According
to Addeo's revised proposed amended complaint, Labor
Relations and the Union continued to hold his grievance in
abeyance for the remainder of 2016, and Labor Relations,
which controlled the grievance hearing process, refused to
schedule a Step 2 hearing. In late December 2016, Addeo
called the Union to discuss the grievance and was told that
Thomas had determined, “alone and/or at the direction
of the City, ” not to pursue the grievance.
Id. ¶ 44. Addeo again inquired about the status
of his grievance in January 2017 and was again told by a
Union representative that Thomas had decided, “on his
own and/or at the direction of the City, ” to
“scuttle” the grievance and “drop
it.” Id. ¶ 45. Until Addeo made these
inquiries, neither the Union nor Labor Relations had notified
him of any decision to scuttle the grievance, and Addeo has
never received any written notice of such a decision from the
Union or Labor Relations to date. Indeed, to Addeo's
knowledge, the grievance still remains in abeyance to date.
Although Addeo has attempted to exhaust the mandatory
grievance process under the collective bargaining agreement,
the Union and the City have frustrated his efforts to date by
arbitrarily failing to process the grievance and complete the
grievance procedure.
Having
conceded that this Court lacks subject matter jurisdiction
over the hybrid § 301/duty of fair representation claim
he asserted against both the City and the Union in his
original complaint based on Crilly v. Southeastern
Pennsylvania Transportation Authority, 529 F.2d 1355 (3d
Cir. 1976), [3] Addeo seeks leave to file an amended
complaint to assert (1) a claim under 42 U.S.C. § 1983
against the City for violating his procedural due process
rights and (2) a state law breach of duty of fair
representation claim against the City and the Union. Addeo
alleges the City violated his procedural due process rights
by failing to schedule a Loudermill hearing or
otherwise to give him notice and an opportunity to respond to
any charges against him before terminating him on September
28, 2015; by failing to administer, process, schedule, and
provide him with a decision regarding his Step 2 grievance;
by intentionally scuttling his Step 2 grievance without
explanation; and by otherwise failing to protect his rights
in the grievance process under the collective bargaining
agreement and causing that process to fail. Addeo's
breach of duty of fair representation claim is based on
similar lapses by the Union, acting “in concert and
collusion with the City of Philadelphia and its Office of
Labor Relations, ” Revised Am. Compl. ¶ 73, and
includes allegations regarding the Union's failure to
advocate for Addeo in a Loudermill hearing, which
was never held. Defendants oppose Addeo's motion for
leave to amend.
DISCUSSION
Under
Federal Rule of Civil Procedure 15, leave to amend should be
“freely give[n] . . . when justice so requires.”
Fed.R.Civ.P. 15(a)(2). Although Rule 15 “embodies a
liberal approach to pleading, ” Arthur v. Maersk,
Inc., 434 F.3d 196, 202 (3d Cir. 2006), leave to amend
need not be given “if it is apparent from the record
that (1) the moving party has demonstrated undue delay, bad
faith or dilatory motives, (2) the amendment would be futile,
or (3) the amendment would prejudice the other party, ”
Hill v. City of Scranton, 411 F.3d 118, 134 (3d Cir.
2005). “An amendment is futile if the amended complaint
would not survive a motion to dismiss for failure to state a
claim upon which relief could be granted” pursuant to
Federal Rule of Civil Procedure 12(b)(6). Alvin v.
Suzuki, 227 F.3d 107, 121 (3d Cir. 2000).
Only
futility is at issue here, as Defendants argue leave to amend
should be denied because Addeo has failed to allege a
cognizable violation of his due process rights and because
the exercise of supplemental jurisdiction is inappropriate as
to his state law breach of duty of fair representation claim.
To withstand dismissal under the Rule 12(b)(6) standard, a
complaint “must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The facts
pleaded must support “more than a sheer possibility
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