A Philadelphia firefighter who was terminated following his second conviction for driving under the influence, has lost his civil suit against the city and Philadelphia Firefighters IAFF Local 22.
Andrew Addeo was fired on September 28, 2015, following his arrest and conviction earlier in the year. Addeo had previously been charged with DUI in 2012, and at the time entered into an Accelerated Rehabilitative Disposition (ARD) program. City rules and the collective bargaining agreement between the city and Local 22 called for dismissal of those members convicted of a second DUI charge.
When Addeo was fired in 2015, the union initially filed a grievance on his behalf. Addeo was serving a 90-day prison sentence on the DUI charge at the time. Later, Local 22 withdrew the grievance as meritless but according to the lawsuit did not promptly inform Addeo. Addeo claims the first DUI charge should not have counted because upon his successful completion of the ARD program, it “was not a DUI conviction or admission of guilt.”
In 2017, Addeo filed suit in United States District Court for the Eastern District of Pennsylvania claiming the city violated his due process rights and the union breached it duty of fair representation by withdrawing his grievance. Addeo claims he was entitled to at least a Loudermill hearing BEFORE he was terminated and a post-termination hearing that could not be waived by the union. Judge Juan R. Sánchez disagreed, granting summary judgment to the city and Local 22 on all counts.
In Judge Sánchez’ words:
- The Court first considers Addeo’s 1983 claim against the City for violating his procedural due process rights.
- He claims the City violated his rights by terminating his employment without a pre- or post-termination hearing. The City argues that it is entitled to summary judgment because (1) a pre-termination hearing was not required due to the exigencies of the situation, and (2) it provided post-termination process that the Union ultimately withdrew.
- At the outset, the Court notes that… due process requires that a tenured municipal employee, like Addeo, receive notice of the charges against him or her and an opportunity to respond prior to termination. See Loudermill, 470 U.S. at 546.
- However, “the [Supreme] Court has recognized, on many occasions, that where a State must act quickly, or where it would be impractical to provide pre-deprivation process, post-deprivation process satisfies the requirements of the Due Process Clause.” Gilbert v. Homar, 520 U.S. 924, 930 (1997). The City asserts Addeo’s situation falls within this exception.
- Addeo claims his Loudermill rights are “inviolate,” and he is entitled to a pre-termination hearing even though he concealed his arrest between March and September 2015 and only revealed it hours before he was due to begin a 90-day jail sentence.
- Mindful of both the Gilbert exception and an employee’s Loudermill rights, the Court turns to the requisite balancing.
- The Court finds that Addeo’s private interest in retaining his employment was outweighed by the City’s interest in removing him under the particular circumstances, where there was essentially no risk of an erroneous termination.
- Accordingly, post-termination process was sufficient to vindicate Addeo’s due process rights. Summary judgment will, therefore, be granted in the City’s favor on this aspect of Addeo’s 1983 claim.
- The Court finds the Union’s decision to withdraw the grievance despite the absence of a Fire Board hearing does not preclude summary judgment.
- In the absence of [prior union] precedent (the disregard of which by the Union might create a jury question), the Union was free to exercise its discretion to withdraw the grievance, provided its decision was not made in bad faith or irrational.
- As has been noted throughout, there is no evidence of any personal animus that would suggest bad faith.
- And, given the strength of the case against Addeo’s continued employment, it was not irrational for the Union to determine that his was not an appropriate case to re-test the theory it offered in [earlier] arbitration[s].
- Accordingly, the failure to grieve the lack of a Fire Board hearing does not raise a jury question.
Here is a copy of the decision: Addeo v. Philadelphia Firefighters Local 22
For those who have been through the Managing Disciplinary Challenges In the Fire Service program, a number of these topics should resonate: due process; notice and opportunity to respond; pre-deprivation hearings versus post-deprivation hearings (which Judge Sánchez appropriately refers to as pre- and post-termination hearings because the deprivation in question is a termination); Loudermill; and Gilbert v. Homar. Reading the entire decision would be a good review for those looking to brush up on procedural due process.
An interesting question for the Legal Eagles: Judge Sánchez extended the reasoning of Gilbert v. Homar to a termination case based upon (1) the difficulty of providing Addeo with a pre-termination hearing while he was in prison in light of the city’s need to “act quickly” rid itself of such a scoundrel and (2) the fact that “there was essentially no risk of an erroneous termination.” The problem with his reasoning is that waiting 90 days for Addeo to serve his sentence while presumably suspended without pay, coupled with a legitimate question about the status of his first DUI charge, belies both points. The Supreme Court in Loudermill was quite clear: a public employee who enjoys an expectation of continued employment is entitled to AT A MINIMUM a Loudermill type hearing where he is confronted with the allegations against him and allowed to explain or rebut BEFORE THE TERMINATION DECISION is finally made. This may have been a case where Addeo’s explanation could have caused the outcome to change.
Perhaps we will see this case again on at least one (3rd Circuit) or perhaps two (3rd Circuit and US Supreme Court) more occasions. On the other hand, the makeup of the federal judiciary is markedly less employee-friendly than was the case in 1985 when Loudermill was decided… so who knows.