Addeo v. Philadelphia Firefighter

          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 ...