Lewis v. Hillsborough Transit Authority, 83-3156

• Decision Date: 05 December 1983
• Docket Number: No. 83-3156,83-3156
• Citation: 726 F.2d 664
• Parties: 115 L.R.R.M. (BNA) 3158 Willie L. LEWIS, Plaintiff-Appellant, v. HILLSBOROUGH TRANSIT AUTHORITY, et al., Defendants-Appellees. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 664

726 F.2d 664

115 L.R.R.M. (BNA) 3158

Willie L. LEWIS, Plaintiff-Appellant, v. HILLSBOROUGH TRANSIT AUTHORITY, et al., Defendants-Appellees.

No. 83-3156

Non-Argument Calendar.

United States Court of Appeals Eleventh Circuit.

Dec. 5, 1983.

Nathaniel W. Tindall, II, Tampa, Fla., for plaintiff-appellant.

Gary Wayne Nicholson, Tampa, Fla., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before HILL, JOHNSON and HENDERSON, Circuit Judges.

PER CURIAM:

Willie L. Lewis instituted this suit in the United States District Court for the Middle District of Florida, alleging that he had been denied his constitutional rights to due process when he lost his job as a bus driver for the Hillsborough Transit Authority (HTA). 42 U.S.C. Sec. 1983. After a non-jury trial, the district court, finding no constitutional violation, found for the defendants and Lewis appeals. We affirm.

The City of Tampa hired Lewis as a bus driver in 1971. The city and the Amalgamated Transit Union (Union) signed a collective bargaining agreement (agreement) in December, 1979. Tampa and Hillsborough County formed the HTA which took over the operation of the bus system in March, 1980. The agreement, when made, anticipated the formation of HTA and provided that the employees "shall suffer no worsening of their wages, hours, and other conditions of employment ..." because of the transition. Agreement at Article 42.7. The agreement also set out a grievance procedure, id. at Article 6, and disciplinary provisions, which stipulated in part that if an employee was absent without leave for three consecutive days, he "may be considered as 'resigned without notice.' " Id. at Article 7.4.

Lewis was involved in an accident on June 11, 1981 while driving a bus. He was taken to the hospital and released the same day. Lewis then made an appointment with Dr. Angelo M. Alves, his personal physician, for July 2, 1981. Fireman's Fund Insurance Company (Fireman's Fund), HTA's workmen's compensation carrier, advised Lewis that it had made an appointment for him to see Dr. James Eckart, also for July 2, 1981. Lewis stated that he told Fireman's Fund he did not intend to claim workmen's compensation and asked Fireman's Fund to cancel the appointment with Dr. Eckart. Lewis apparently did not receive the notification of cancellation in time. In any event, he saw both Dr. Eckart and Dr. Alves.

Dr. Eckart found no physical evidence of injury and testified by deposition that he told Lewis he could return to work. Dr. Alves advised Lewis that he should not work for at least a month and gave Lewis a note to this effect. Lewis took Dr. Alves' note to his attorney. Both doctors filed reports with Fireman's Fund. Relying on Dr. Eckart's diagnosis, Fireman's Fund determined that Lewis could return to work and so notified both Lewis and the HTA. Lewis, however, chose to follow Dr. Alves' recommendation and remained off the job. Although Lewis admitted that on previous occasions he had told his employer the reason for his failure to report for work, Lewis never informed the HTA of Dr. Alves' diagnosis. Lewis twice went to the HTA offices to fill out some forms and he spoke to some HTA employees, but he never gave a reason for his absence. Because he had been absent without leave for more than three days, Joseph Moffett, HTA's Manager of Safety and Training, sent Lewis a letter on July 27, 1981, stating that he was considered as having voluntarily resigned under Article 7.4 of the agreement.

Upon receiving the letter, Lewis met with the president of the union local who told Lewis that he could not help him because he had retained an attorney. Lewis' attorney then wrote to Moffett, stating that Lewis had not resigned, but was only following Dr. Alves' advice. The attorney also requested a formal hearing. Moffett replied that, because Lewis had not notified the HTA of Dr. Alves' diagnosis, he was still considered as having resigned. Lewis then filed this suit.

The district court concluded that Lewis had a property interest in continued employment because of his status as a civil servant and his rights under the collective bargaining agreement. The court, however, found no violation of due process because Lewis resigned by his own inaction and was not terminated. Also, even if he had been terminated, Moffett's letter furnished adequate notice of the reasons and the grievance procedure in the agreement provided Lewis with an effective opportunity to rebut the reasons for his dismissal. Glenn v. Newman, 614 F.2d 467 (5th Cir.1980).

Lewis urges that the mere availability of a post-termination grievance procedure cannot cure the alleged denial of due process. He admits that the grievance procedure, if utilized, could...