Dykes v. Southeastern Pennsylvania Transp. Authority

• Decision Date: 07 November 1995
• Docket Number: AFL-CIO,No. 95-1032,95-1032
• Citation: 68 F.3d 1564
• Parties: 150 L.R.R.M. (BNA) 2769, 64 USLW 2317 Joseph G. DYKES, Appellant v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY; Transport Workers Union of Philadelphia, Local 234, Transport Workers Union of America,
• Court: U.S. Court of Appeals — Third Circuit

Page 1564

68 F.3d 1564

150 L.R.R.M. (BNA) 2769, 64 USLW 2317

Joseph G. DYKES, Appellant v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY Transport Workers Union of Philadelphia, Local 234, Transport Workers Union of America, AFL-CIO.

No. 95-1032.

United States Court of Appeals Third Circuit.

Argued Sept. 12, 1995.

Decided Nov. 7, 1995.

H. Francis deLone, Jr. (Argued), Philadelphia, PA, for Appellant.

Nicholas J. Staffieri (Argued), SEPTA, Legal Department, Philadelphia, PA, for Appellee SEPTA.

Michael L. Brodie (Argued), Robert W. Kosman, Brodie & Rubinsky, Philadelphia, PA, for Transport Workers Union.

Before: MANSMANN, SCIRICA and NYGAARD, Circuit Judges.

OPINION OF THE COURT

MANSMANN, Circuit Judge.

In September, 1994, bus driver Joseph G. Dykes filed suit pursuant to 42 U.S.C. Sec. 1983 against the Southeastern Pennsylvania Transportation Authority ("SEPTA") and the Transport Workers' Union of Philadelphia, AFL-CIO, Local 234 ("Local 234"). In his two-count complaint, Dykes alleged that his constitutional rights were violated when his SEPTA supervisors asked him to submit to body fluids testing in the absence of reasonable suspicion and that SEPTA and Local 234 conspired to deprive him of due process in connection with the grievance proceedings which followed his discharge.

This appeal requires that we determine whether the district court erred in dismissing Dykes' complaint for failure to state a cause of action. In making this determination we revisit and extend our opinion in Bolden v. SEPTA, 953 F.2d 807 (3d Cir.1991), to conclude that, pursuant to the collective bargaining agreement, whether reasonable suspicion exists in a given case is not a question of law under the Fourth Amendment, but is instead a question of fact to be resolved during the course of the grievance/arbitration process. We also hold that where an adequate grievance/arbitration procedure is in place and is followed, a plaintiff has received the due process to which he is entitled under the Fourteenth Amendment. Because we conclude that Dykes has failed to allege a constitutional violation cognizable under 42 U.S.C. Sec. 1983, we will affirm the orders of the district court.

I.

The allegations set forth in the complaint are straightforward. ¹ On July 13, 1993, Dykes, a bus driver employed by SEPTA and represented by Local 234, drove a SEPTA bus along his regular route. At some point during the trip, SEPTA supervisors boarded the bus, ordered Dykes out of the driver's seat, and asked that he submit to body fluids tests designed to detect the presence of drugs and alcohol. Dykes refused to submit to those tests, and, as a result, was fired. Following Dykes' discharge, Local 234 pursued three levels of grievance proceedings. At each stage, it was determined that the tests requested were based on reasonable suspicion and Dykes' discharge was upheld. The union did not submit the matter to arbitration.

On September 6, 1994, Dykes filed a civil complaint consisting of two counts, both of which were based upon 42 U.S.C. Sec. 1983. In Count One, Dykes alleged that SEPTA deprived "him of his Fourth Amendment Right to be free from unreasonable searches and seizures." He explained that "[t]he supervisors who ordered [him] to submit to a body fluids test had no reasonable basis for suspecting that [he] was under the influence of drugs or alcohol." Count Two of the complaint, directed at SEPTA and Local 234, alleged that Dykes was deprived of a property interest in his employment without due process of law as required by the Fourteenth Amendment. Specifically, Dykes challenged the role of SEPTA and Local 234 in the post-termination grievance proceedings. Local 234 was said to have "allow[ed] SEPTA ... to get away with what [the Union] knew to be violations of plaintiff's due process rights even though [the Union] had the power to prevent such violations and a duty to try to do so." Dykes also claimed that Local 234 failed to obtain and present meaningful evidence and discouraged Dykes from presenting evidence in his own behalf. The Union was said to have "aided and abetted" and "acted in concert with SEPTA in effecting the deprivation of plaintiff's due process rights."

On October 7, 1994, SEPTA filed a Motion to Dismiss Plaintiff's Complaint pursuant to F.R.Civ.P. 12(b)(6). Local 234 filed a similar motion on November 14, 1994. By Order dated December 19, 1994, the district court dismissed Dykes' complaint as to SEPTA and, on December 29, 1994, entered an order dismissing Count II of the complaint. ² This appeal followed.

The sole issue before us concerns the adequacy of the complaint. In order for a plaintiff to state a cause of action under 42 U.S.C. Sec. 1983, he must allege "that the defendant has deprived him of a right secured by the 'Constitution and laws' of the United States ... and that the defendant deprived him of this Constitutional right 'under the color of any statute, ordinance, regulation, custom or usage of any State or Territory'." Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970). We evaluate each count of Dykes' complaint with reference to this standard.

II.

In Count One, Dykes alleged that "the actions of defendant SEPTA ... deprived him of his Fourth Amendment right to be free from unreasonable searches and seizures" and that "in denying [Dykes] his Fourth Amendment rights, defendant SEPTA--a state agency--was acting under color of state law." In addition, Dykes alleged that "Defendant [Local 234] is a labor organization which ...--at all times relevant to this action--was [Dykes'] exclusive representative ... for the purposes of collective bargaining and pursuing grievances with respect to the terms and conditions of ... employment"; further, that SEPTA had "no reasonable basis for suspecting that [he] was under the influence of alcohol and that the proposed search which deprived [him] of his Fourth amendment Rights [was] done in accordance with policies or practices of SEPTA...."

SEPTA filed a motion to dismiss, attaching a copy of the 1992-1995 collective bargaining agreement ("CBA") made between SEPTA and Local 234. ³ Article XII Sec. 1203.I(a) of the CBA governs when drug and alcohol testing of SEPTA personnel based upon reasonable suspicion may be undertaken and defines what constitutes reasonable suspicion. ⁴ SEPTA asserts that the issue of whether reasonable suspicion exists is an issue of contract interpretation which must be addressed pursuant to the grievance process. Accordingly, Dykes allegedly is bound by the finding, made in each step of the grievance process, that SEPTA acted on reasonable suspicion in requesting that he submit to drug and alcohol testing. The crux of these contentions is that Dykes was not subjected to an unreasonable search and seizure within the meaning of the Fourth Amendment or, consequently, within the scope of section 1983.

A.

Cases interpreting the scope of the Fourth Amendment establish that drug testing of public employees may raise search and seizure issues. Skinner v. Railway Labor Executives' Assoc., 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989); National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989). It is equally clear that the Fourth Amendment applies only to unreasonable searches and seizures. Skinner, 489 U.S. at 619, 109 S.Ct. at 1414. What is reasonable "depends on all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself." Id. Courts are required to "balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 2642, 77 L.Ed.2d 110 (1983).

The Supreme Court has stated that the very fact of individualized suspicion goes far toward making a search reasonable where the government has a legitimate interest in confirming the alleged violation. See Skinner, 489 U.S. at 623, 109 S.Ct. at 1416-17; National Treasury Employees Union v. Yeutter, 918 F.2d 968, 975 (D.C.Cir.1990).

In this case, where Dykes operated a transit bus, there is no question that SEPTA had a legitimate interest in developing and administering a drug and alcohol testing program. In fact, in Transport Workers' Local 234 v. SEPTA, 884 F.2d 709 (3d Cir.1988), we held that even random testing of SEPTA drivers was constitutionally justified given "SEPTA's extensive evidence of a severe drug abuse problem among its operating employees." Id. at 711.

What we confront here, then, is not a policy alleged to be unconstitutional; the parties agree that the SEPTA suspicion-based testing policy is reasonable for purposes of the Fourth Amendment. Dykes alleges, instead, that the policy was not followed; SEPTA sought to have him submit to testing in the absence of reasonable suspicion. It is SEPTA's violation of its own policy that allegedly renders the proposed search unreasonable.

B.

Ultimately, the question of whether a particular search is reasonable for purposes of the Fourth Amendment is not a question of fact. "Unlike a determination of 'reasonableness' in ordinary tort cases and some other contexts, this balancing process presents a question of law...." Bolden v. SEPTA, 953 F.2d 807, 822 (3d Cir.1991), cert. denied, 504 U.S. 943, 112 S.Ct. 2281, 119 L.Ed.2d 206 (1992). In order to resolve the reasonableness question presented here, we must first examine the more narrow question of whether there was reasonable suspicion underlying SEPTA's request that Dykes submit to testing. If there was reasonable suspicion, and SEPTA, therefore, complied with the terms of its drug and alcohol testing policy, there is no Fourth Amendment issue; the policy, evaluated against the background of precedent, is reasonable in the broad constitutional sense. If SEPTA's request that Dykes...