Addeo v. Local 22 of the Int'l Ass'n of Firefighters, CIVIL ACTION No. 17-2239

• Decision Date: 20 November 2018
• Docket Number: CIVIL ACTION No. 17-2239
• Parties: ANDREW ADDEO v. PHILADELPHIA FIREFIGHTER AND PARAMEDIC UNION: LOCAL 22 OF THE INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

ANDREW ADDEO v. PHILADELPHIA FIREFIGHTER AND PARAMEDIC UNION: LOCAL 22

OF THE INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, et al.

CIVIL ACTION No. 17-2239

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

November 20, 2018

MEMORANDUM

Juan R. Sánchez, C.J.

Plaintiff Andrew Addeo, a City of Philadelphia (City) firefighter twice arrested, and once incarcerated, for driving under the influence (DUI), brings this suit against the City and his union, the Philadelphia Firefighters' and Paramedics' Union International Association of Fire Fighters Local 22 (the Union), for terminating him after his second DUI arrest, and failing to grieve his termination. More specifically, Addeo claims the City violated his procedural due process rights by, inter alia, failing to provide him with a pre-termination hearing despite his failure to disclose his second DUI until hours before he was required to report to jail. He also claims the City and Union breached their duty of fair representation by colluding to scuttle his grievance regarding his termination—even though the applicable collective bargaining agreement required his dismissal. The City and Union have each filed a motion for summary judgment. Because there are no genuine disputes of material fact and both Defendants are entitled to judgment as a matter of law, the motions will be granted.

FACTS

Addeo worked as a firefighter for the City of Philadelphia Fire Department from April 2004 until September 2015. During the relevant time period, the Union was the exclusive labor bargaining unit for firefighters and paramedics employed by the City. See Pl.'s Opp'n to Defs.' Mots. Summ. J. (Opp'n) Ex. H.

As a Fire Department employee and Union member, Addeo was subject to the "Disciplinary Code" in the Collective Bargaining Agreement (CBA) between the City and Union. The Disciplinary Code establishes punishments for various types of misconduct, including driving under the influence of alcohol (DUI). Opp'n Ex. H, at 41-60.¹ Pursuant to § 2:07 of the Disciplinary Code, the penalty for the first time a firefighter is "arrested off-duty for operating a motor vehicle under the influence of alcohol in violation of the DUI policy" is a 160-hour suspension. Id. at 49. The penalty for a second arrest is termination. Id. The "reckoning period" for this violation—the period during which a subsequent DUI will be considered a second offense—is the duration of the firefighter's employment. Id. The Disciplinary Code also states that discipline will be "rescinded" where the charges are "dropped," but does not define "dropped." Id.

In August 2012, Addeo was arrested for his first DUI while off duty. Opp'n Ex. A ¶¶ 36-37. He subsequently participated in the Accelerated Rehabilitative Disposition (ARD) program, which he completed successfully. Id. ¶¶ 37, 39. The City also punished Addeo for his arrest. During the course of those disciplinary proceedings, Addeo was instructed that a subsequent arrest for driving under the influence would result in his termination. Union Mot. Summ. J. (Union Mot.) Ex. E, at 7 (January 4, 2013, memorandum reflecting Addeo's written acknowledgment that "ifyou are charged with another D.U.I., it will result in [y]our dismissal from the Philadelphia Fire Department"). After he was disciplined, Addeo received a letter from the Adult Probation Supervisor dated October 21, 2013, indicating he had completed the program and that ARD "was not a DUI conviction or admission of guilt." Id. ¶ 39.² The letter also informed Addeo that he had to petition the court to expunge the DUI. Id. ¶ 40. Addeo did not, thereafter, seek to have the DUI expunged or challenge his discipline by the City for the arrest on the basis that the charge was "dropped" within the meaning of the CBA. Union Mot. Ex. C ¶ 4. In September 2018, some 16 months after filing this lawsuit (and several years after the October 2013 letter), Addeo learned that the charge had, in fact, been expunged. Opp'n Ex. A, ¶¶ 49-53; see also Opp'n Ex. L, at 4.

On March 8, 2015, Addeo was arrested for DUI in Bucks County. Following his arrest, he was taken to a local hospital, where he refused to submit to a blood test.³ Addeo contested this second DUI. Am. Compl. ¶ 23. He was convicted after a trial and ordered to report for incarceration within 24 hours. Id. It was only after the conviction on September 15, 2015, that Addeo reported the arrest, conviction, and sentence to the Union. Id. ¶ 25. He waited one more day—until September 16—to report his arrest, conviction, and sentence to the City. Id. ¶ 24.

On September 18, 2018, the City mailed to Addeo's home address a document entitled, "Notice of Intent to Dismiss" (NOID). City Motion Summ. J. (City Mot.) Ex. 7, at 4-5. The NOID advised that, effective ten days from service, the City intended to dismiss Addeo for threeviolations: (1) "[c]onduct unbecoming a member," in violation of §§ 1:00, 1:17, and 1:18 of the Disciplinary Code; (2) "[a]lcohol intoxication and drug use" in violation of § 2:07 of the Disciplinary Code; and (3) "[n]eglect of duty," in violation of § 4:05 of the Disciplinary Code. Id. The NOID further identifies the factual basis for these violations and the resulting dismissal:

In that on Sunday March 8, 2015 you were arrested in Bucks County for DUI. During your arrest you refused to cooperate with the police investigation by refusing to give a blood sample which is a direct violation of the Fire Department's Policy. The Fire Department was not aware that you were arrested on March 8, 2015, you failed to notify the Fire Department of your arrest, the Fire Department was notified of your March 8, 2015 arrest on September 15, 2015 six (6) months later which is a violation of the Fire Department's Directive[s], Regulation[s], and Polici[e]s.

By these actions you have violated Directive #25 and your Oath of Office, have demonstrated Conduct Unbecoming a Member and violated Directive #54 DUI policy, thereby rendering yourself unfit to be a Firefighter in the Philadelphia Fire Department. For these reasons you are notified of intention to dismiss effective ten (10) days from service of this notice.

Id.at 5. The NOID also contains language apprising Addeo of his right to contest the intended action and to seek review of the dismissal by the Civil Service Commission:

If you believe that this intended action is unjustified, you may, under regulations of the Civil Service Commission, within ten days from service of this notice, notify [the Fire Commissioner] in writing of your reasons therefore and summarize the facts in support of your belief. A copy of your letter must be sent at the same time to the Personnel Director.

Your replying to this notice and sending a copy of your reply to the Personnel Director does not constitute an appeal to the Civil Service Commission. You may appeal to the Civil Service Commission only when this intended action becomes final and within thirty days thereafter.

Id. at 4.

Contemporaneously with the NOID, the City mailed Addeo (again, to his home address) a Notice of Dismissal with an effective date of September 28, 2015. Id. at 2-3. Although the Notice of Dismissal identifies the same violations identified in the NOID (conduct unbecoming a member,alcohol intoxication and drug use, and neglect of duty) and mirrors the NOID's description of Addeo's misconduct, its closing paragraph states:

By these actions you have demonstrated Neglect of Duty thereby rendering yourself unfit to be an Officer and serve in the Philadelphia Fire Department. For these reasons, either one of which would be sufficient for your dismissal, effective Monday, September 28, 2015 you are [d]ismissed from your position at the Philadelphia Fire Department.

Id. The Notice of Dismissal, like the NOID, contains language apprising Addeo of his right to appeal to the Civil Service Commission:

You are further notified and advised that the Philadelphia Home Rule Charter provides that any employee who is dismissed after [s]atifactorily completing his probationary period of service may, within thirty days after such dismissal, appeal to the Civil Service Commission for review thereof.

Id. at 2.

At no time did Addeo exercise his right to review by the Civil Service Commission. City Mot. Ex. 3, at 57:15-21. Instead, Addeo elected to challenge his termination through the grievance process established in the CBA, which permits the Union to challenge an adverse employment action. Opp'n Ex. H at 16. During "Step I," the grievant or Union must submit the grievance in writing and specify the CBA provisions which the action is alleged to contravene. Id. at 16-17. The City has seven days to respond. Id. at 17. At Step II, the grievance "may be referred by the Union . . . for review by the Director of Labor Relations or his/her designee." Id. at 17. Step III is binding arbitration. Id. On September 23, 2015, the Union timely filed a grievance on Addeo's behalf. Union Mot. Ex. J. Addeo's grievance was held in abeyance between Step I and Step II while Addeo served his sentence.

Addeo's termination also implicated "Directive 25," which appears to be a policy promulgated by the Fire Department concerning the discipline of its members. Opp'n Ex. F. Directive 25 establishes a procedure for a "Fire Board of Investigation," whose purpose is to"inquire into all the facts" of a disciplinary case and "report their findings to the Fire Commissioner." Id. at 4. A firefighter may be represented at a hearing before the Fire Board by counsel or the Union "[i]f the member so desires." Id. at 5. The terms of the Directive make clear that a Fire Board hearing is not waivable where the proposed disciplinary action calls for termination. Id. Addeo never received a hearing before the Fire Board of Investigation.

On March 8, 2016, Dana Johnson, Deputy Director of the City's Office of Labor Relations, emailed Karen Boyle, an administrative assistant for the Union, about the schedule for several open...