1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-7-1995

Dykes v SEPTA

Precedential or Non-Precedential:

Docket 95-1032

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Recommended Citation

"Dykes v SEPTA" (1995). 1995 Decisions. Paper 286.

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1 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

___________ 

No. 95-1032 

___________ 

 JOSEPH G. DYKES, 

 Appellant

 vs. 

SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY; 

TRANSPORT WORKERS UNION OF PHILADELPHIA, LOCAL 234, 

TRANSPORT WORKERS UNION OF AMERICA, AFL-CIO 

___________ 

Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

(D.C. Civ. No. 94-cv-05478) 

___________ 

 

Argued 

September 12, 1995 

Before: MANSMANN, SCIRICA and NYGAARD, Circuit Judges. 

(Filed November 7, 1995) 

___________ 

H. Francis deLone, Jr., Esquire (Argued) 

1717 Arch Street 

3754 Bell Atlantic Tower 

Philadelphia, PA 19103 

 COUNSEL FOR APPELLANT 

Nicholas J. Staffieri, Esquire (Argued) 

SEPTA 

Legal Department 

1234 Market Street 

5th Floor 

Philadelphia, PA 19107-3724 

 COUNSEL FOR APPELLEE SEPTA 

Michael L. Brodie, Esquire (Argued) 

Robert W. Kosman, Esquire 

Brodie & Rubinsky 

924 Cherry Street 
2 

Suite 400 

Philadelphia, PA 19107 

 COUNSEL FOR TRANSPORT WORKERS UNION 

___________ 

OPINION OF THE COURT 

__________ 

MANSMANN, Circuit Judge. 

 In September, 1994, bus driver Joseph G. Dykes filed 

suit pursuant to 42 U.S.C. § 1983 against the Southeastern 

Pennsylvania Transportation Authority ("SEPTA") and the Transport 

Worker's 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 
3 

is entitled under the Fourteenth Amendment. Because we conclude 

that Dykes has failed to allege a constitutional violation 

cognizable under 42 U.S.C. § 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. 

§ 1983. In Count One, Dykes alleged that SEPTA deprived "him of 

 

1 In reviewing the grant of a motion to dismiss for 

failure to state a cause of action, we apply the same standard as 

did the district court, accepting the allegations of the 

complaint as true and construing those allegations, in a light 

most favorable to the plaintiff. Wisniewski v. Johns Manville 

Corp., 759 F.2d 271, 273 (3d Cir. 1985). This standard does not 

vary where the action is brought pursuant to 42 U.S.C. § 1983. 

Pension Benefit Guaranty Corp. v. White Consolidated Industries, 

Inc., 998 F.2d 1192 (3d Cir. 1993). 
4 

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. 

 

2 The district court did not issue opinions explaining 

the deficiencies in the complaint. 
5 

 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. § 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 

(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. . . ." 
6 

 SEPTA filed a motion to dismiss, attaching a copy of 

the 1992-1995 collective bargaining agreement ("CBA") made 

between SEPTA and Local 2343. Article XII § 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 

 

3 Dykes argues that we may not look to the CBA in 

reviewing a 12(b)(6) motion. This argument ignores our decision 

in Pension Benefits Guaranty Corp. v. White Consolidated 

Industries, Inc.. There, we held that 

A court may consider an undisputedly 

authentic document that a defendant attaches 

as an exhibit to a motion to dismiss if the 

plaintiff's claims are based on the document. 

Otherwise, a plaintiff with a legally 

deficient claim could survive a motion to 

dismiss simply by failing to attach a 

dispositive document upon which it relied. 

998 F.2d at 1196 (citations omitted). This holding is not 

inconsistent with "Rule 12(b)(6)'s requirement that a motion to 

dismiss be converted to a summary judgment motion if a court 

considers matter outside the pleadings . . . . When a complaint 

relies on a document, however, the plaintiff obviously is on 

notice of the contents of the document and the need for a chance 

to refute evidence is greatly diminished." Id. at 1196-97. 

 Clearly, this matter falls within the rule announced in 

Pension Benefit Guaranty as Dykes' complaint, while framed in 

constitutional terms, grows out of an alleged violation of the 

CBA. 

4 The CBA, at Article XII, § 203, provides as follows: 

[SEPTA] may require an employee to submit to 

drug and alcohol testing on a reasonable 

suspicion basis where a supervisor trained in 

the detection of drug and alcohol use can 

articulate and substantiate specific 

behavioral performance or contemporaneous 

physical indicators of probable drug or 

alcohol use. [SEPTA] and the Union 

understand such indicators to include such of 

the following as would reasonably lead the 
7 

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 (1989); National Treasury Employees Union v. Von 

Raab, 489 U.S. 656 (1989). It is equally clear that the Fourth 

Amendment applies only to unreasonable searches and seizures. 

Skinner, 489 U.S. at 619. What is reasonable "depends on all of 

 

supervisor to conclude that drug or alcohol 

use is a contributory factor: Behavior or 

actions which differ from normal behavior or 

actions under the circumstances, 

inappropriate or disoriented behavior and 

incidents involving serious violations of 

safety or operating rules and practices. 

Article XII, § 1203II(a) provides that "[f]ailure to submit to a 

drug and alcohol test properly required . . . is a dischargeable 

offense." The grievance procedure designed to test the 

circumstances surrounding drug and alcohol testing is set forth 

in Article II of the CBA. While Article XII does not refer 

specifically to the grievance procedure detailed in Article II, 

the parties agree that the grievance procedures applied to the 

situation presented here. 
8 

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 (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; 

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 suspicionbased 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 
9 

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, 112 S. Ct. 2281 

(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 be tested was founded on reasonable suspicion, Count 

One of Dykes' complaint was properly dismissed. 

 The dispositive issue in this case is, therefore, 

whether SEPTA had reasonable suspicion upon which to test Dykes. 

Relying on our en banc decision in Bolden v. SEPTA, 953 F.2d 807 

(3d Cir. 1991), we conclude that this question is one of fact to 

be determined during the course of the grievance process and that 

the finding reached during this process is binding upon the 

reviewing court. 
10 

 In order to explain this conclusion, we explore the 

facts of Bolden in some detail. In 1986, Bolden, a SEPTA 

custodian, was involved in an altercation with a SEPTA bus driver 

and was discharged. This discharge was pursued through three 

levels of grievance proceedings with Bolden represented by Local 

234. In June, 1987, an arbitration panel ruled that Bolden was 

entitled to reinstatement and back pay. 

 Between the time that Bolden was discharged and the 

time that he was to return to work, SEPTA unilaterally instituted 

a new drug testing policy which required that employees returning 

to work after certain absences be tested for drugs. Unions 

representing SEPTA workers challenged the legality of this 

return-to-work testing. The district court found this type of 

testing unconstitutional, Transport Workers' Local 234 v. SEPTA, 

678 F. Supp. 543 (E.D. Pa. 1988), and we affirmed. Transport 

Workers' Local 234 v. SEPTA, 863 F.2d 1110 (3d. Cir. 1988), 

vacated, 492 U.S. 902, reaffirmed, 884 F.2d 709 (3d Cir. 1989). 

Commenting on return-to-work testing, we wrote: 

SEPTA must justify its return-to-work testing 

on the basis of some particularized 

suspicion. It has, however, failed to 

present any evidence that the employees 

returning to work present some unique risk 

directly related to drug or alcohol use. 

Thus, SEPTA has not shown that this aspect of 

its program is initially justified or that 

testing of all employees returning after an 

absence for whatever cause has any 

relationship to the articulated need for the 

program. 

863 F.2d at 1122. 
11 

 While the Unions' suit was pending, but prior to the 

court decisions in this matter, Bolden was reinstated. Under the 

testing policy then in force, Bolden submitted to a return-towork drug test. He tested positive for marijuana and was again 

discharged. Once again, the Union initiated grievance 

proceedings on Bolden's behalf. At the end of the three-step 

process but prior to arbitration and prior to resolution of the 

pending suit challenging return-to-work drug testing, SEPTA and 

the Union reached a settlement regarding Bolden's second 

discharge. Under the terms of the settlement, Bolden was 

authorized to return to work provided that he 

(1) enter SEPTA's Employee Assistance Program 

and present evidence of successful substance 

abuse treatment, agree to an "aftercare 

program," submit to a body fluids test before 

returning to work, and remain subject to 

unannounced follow-up tests or (2) submit to 

a body fluids test and, if he passed, meet 

with a substance abuse counsellor and remain 

subject to unannounced follow-up testing for 

six months. 

Id. at 811. Under either settlement option, Bolden was required 

to submit to body fluids testing. Bolden declined to return to 

work on these terms and filed an action pursuant to 42 U.S.C. 

§1983, alleging violation of his Fourth and Fourteenth Amendment 

rights. Following a jury trial, judgment was entered for Bolden 

on the Fourth Amendment claim. 

 On appeal, we affirmed the order of the district court 

with respect to the Fourth Amendment claim, holding first that 

return-to-work testing could not be justified under the balancing 

test outlined in Skinner: "SEPTA has no special need to subject 
12 

Bolden to a drug test based on any dangers presented by his job." 

Bolden, 953 F.2d at 824. We also rejected SEPTA's claim that 

return-to-work testing was reasonable under the Fourth Amendment 

because Bolden had, upon his original reinstatement, voluntarily 

consented to drug testing as a matter of law. We found, however, 

"greater merit in SEPTA's reliance on the settlement it reached 

with local 234 following Bolden's discharge for drug use." Id.

at 825. 

 While we held that the grievance settlement did not 

preclude Bolden's section 1983 claim under the doctrines of res 

judicata or collateral estoppel, we found that the grievance 

settlement was binding upon Bolden because "a union such as 

Bolden's may validly consent to terms and conditions of 

employment, such as submission to drug testing, that implicate 

employees' Fourth Amendment rights." Id. at 826. 

 We noted that unions are given statutory authority to 

make binding contractual commitments regarding the terms and 

conditions of employment. "Under the Pennsylvania Public 

Employees Relations Act (PERA), Pa. Stat. tit. 43 § 1101.606 

(Purdon 1991), a union is the exclusive collective bargaining 

representative for all of the employees in the unit, and 

therefore the union, in entering into a collective bargaining 

agreement, may agree to terms and conditions that are 

contractually binding on all of the employees." Id. We also 

reviewed caselaw generated by the Supreme Court and our sister 

courts of appeals recognizing that "a union's authority as 

exclusive bargaining agent necessarily entails some restrictions 
13 

on constitutional rights that individual employees would 

otherwise enjoy." Id. Finally, we recognized that "[t]he 

National Labor Relations Board has held that drug testing is a 

mandatory subject of [collective] bargaining." 953 F.2d at 827. 

 Most importantly for purposes of reviewing Dykes' 

claims, we held that certain factual questions may be 

conclusively determined through collective bargaining, even where 

resolution of those questions could "have important implications 

under the Fourth Amendment." Id. at 828. We also made clear 

that determination of these factual issues precludes their being 

litigated further: 

If individual public employees may litigate 

such questions despite the resolution reached 

through collective bargaining, the utility of 

collective bargaining with respect to drug 

testing would be greatly diminished. In sum, 

we conclude that a public employee union 

acting as exclusive bargaining agent may 

consent to drug testing on behalf of the 

employees it represents. 

Id. This consent may be explicit, i.e., an express term in the 

collective bargaining agreement, or implicit, derived from 

practice, usage and custom. "[I]f the union agrees, or if 

binding arbitration establishes, that the collective bargaining 

agreement impliedly authorizes drug testing, individual employees 

[and the court] are bound by this interpretation unless they can 

show a breach of the duty of fair representation." Id. When we 

applied these principles to Bolden's case, we concluded that when 

the union, as Bolden's exclusive bargaining agent, pursued 

grievance procedures and ultimately entered into a settlement 
14 

with SEPTA which mandated drug testing for Bolden, "the 

settlement had the same effect under labor law and under the 

Fourth Amendment as if Bolden himself consented to such future 

drug testing." 953 F.2d at 829. Bolden, even though he never 

personally ratified the settlement, was bound by its terms and 

could not recover damages for the period of time following the 

settlement. 

 Our holding in Bolden establishes that even where a 

drug testing policy has been held to be constitutionally infirm, 

a public employee may not pursue a civil rights suit based upon 

that infirmity where his union and his employer agree to operate 

under that policy. 

C. 

 While Dykes' case differs from Bolden in some 

significant respects, we believe that Bolden sets forth the 

principles which govern the outcome of this case. Unlike in 

Bolden, the issue here is not SEPTA's policy per se. As we have 

explained, the policy, as written, raises no Fourth Amendment 

concerns. The issue for Dykes is whether the policy was 

followed, i.e., was there reasonable suspicion as required by the 

CBA? The issue for us is even more basic: is the existence of 

reasonable suspicion a question of law for the courts or one of 

fact appropriately resolved in grievance proceedings? 

 We believe that under the CBA, both in the details of 

the drug testing policy where reasonable suspicion is defined and 

in the applicable grievance procedures, it should have been clear 
15 

to all parties that this question would be considered and 

resolved in the grievance proceedings. At oral argument, counsel 

for SEPTA represented, without challenge, that the question of 

reasonable suspicion is regularly considered and resolved through 

the grievance and arbitration process. We view the issue of 

reasonable suspicion as one of fact which, like the question of 

which jobs are "safety-sensitive," is best left to resolution in 

the grievance process. 

 In sum, we agree with SEPTA that whether reasonable 

suspicion exists in a given case is an issue involving 

interpretation of the CBA and that we "must defer to this 

interpretation of the agreement unless the employee can show that 

the union has breached its duty of fair representation. . . ." 

Id. There has been no such allegation here. 

 Because the question of reasonable suspicion was not 

resolved in Dykes' favor in any step of the grievance process, we 

find that the proposed search was reasonable. The allegations in 

the complaint, therefore, are not sufficient to support a Fourth 

Amendment claim cognizable under 42 U.S.C. § 1983. 

III. 

 We next address the adequacy of the claims set forth in 

Count II of Dykes' complaint. This count, directed against both 

SEPTA and Local 234, alleges that Dykes was deprived of a 

property interest in his job without due process of law as 

required by the Fourteenth Amendment when SEPTA failed to accord 

him "a meaningful opportunity to be heard with respect to the 
16 

discharge." Local 234 is alleged to have "aided and abetted and 

acted in concert with SEPTA in effecting the deprivation of 

Dykes' due process rights."5 We will not focus upon whether the 

allegations set forth in Count II are sufficient to allege a 

conspiracy bringing Local 234, as a private actor, within the 

ambit of 42 U.S.C. § 1983. We need not reach the issue of 

conspiracy because we conclude that Dykes' complaint fails to 

allege a cognizable violation of his due process rights. 

A. 

 In order to state a section 1983 claim based on the 

Fourteenth Amendment, Dykes must allege that he was deprived of a 

property interest under color of state law without due process. 

For purposes of our analysis, we assume that Dykes has alleged 

facts sufficient to establish that he had a contractual 

employment relationship with SEPTA and that the relationship 

created a property interest subject to Fourteenth Amendment 

protection. We also assume that Dykes was deprived of that 

interest when he was discharged for failing to submit to body 

fluids testing. Our focus, then, rests upon the question of due 

process. "We must bear in mind that no single model of 

procedural fairness, let alone a particular form of procedure, is 

dictated by the Due Process Clause." Kremer v. Chemical 

Construction Corp., 456 U.S. 461, 483 (1982). "[D]ue process is 

 

5 Dykes does not claim that the procedures established 

are inadequate per se or that additional procedures are required. 

The thrust of his complaint is that SEPTA and Local 234 acted to 

make a "sham" of the procedures in place. 
17 

flexible and calls for such procedural protections as the 

particular situation demands." Mathews v. Eldridge, 424 U.S. 

319, 334 (1976) (citation omitted). The complaint establishes 

that Dykes had available to him a three step grievance process 

which could have been followed by arbitration. The grievance 

process was exhausted and, when the union determined not to carry 

the matter to arbitration, Dykes did not pursue a state court 

action alleging breach of the duty of fair representation. 

B. 

 We have held that under the Pennsylvania Public 

Employee Relations Act, 43 Pa. Stat. Ann. § 101.101 et seq., 

federal labor law governs a challenge to procedures followed in 

the termination of a public employee. See Crilly v. SEPTA, 529 

F.2d 1355 (3d Cir. 1976). If a public employee believes that the 

grievance process was defective, he may seek relief available 

under state law. Once an employee establishes that a 

[U]nion has acted in bad faith towards its 

member[,] . . . the Court of Common Pleas 

sitting in equity may order completion of the 

arbitration procedure . . . . Under this 

procedure a wrongfully discharged employee 

receives precisely the treatment all the 

employees in the unit are entitled to under 

the collective bargaining agreement. 

Martino v. T.W.U., Local 234, 505 Pa. 391, 409-410 (1984). 

 Where a due process claim is raised against a public 

employer, and grievance and arbitration procedures are in place, 

we have held that those procedures satisfy due process 

requirements "even if the hearing conducted by the Employer . . . 
18 

[was] inherently biased." Jackson v. Temple University, 721 F.2d 

931 (3d Cir. 1983). 

 In Jackson, a public employee filed suit pursuant to 42 

U.S.C. § 1983 alleging that his due process rights were infringed 

by the biased nature of the grievance hearings conducted by 

Temple University following his discharge and by the Union's 

refusal to bring the matter to arbitration. We affirmed the 

district court's dismissal of the section 1983 claim, agreeing 

with the district court that no precedent, "binding or 

otherwise," has "recognized a section 1983 action where a union 

has refused to take to arbitration an employee's claim against a 

public employer." 721 F.2d at 933 n.1. We noted that 

[t]he Union, as the sole and exclusive 

bargaining representative had the ultimate 

power to make a fair and responsible 

determination as to whether it would invoke 

the arbitration proceeding available under 

the collective bargaining agreement. The 

right to proceed to arbitration provided 

. . . an adequate due process safeguard even 

if the hearing conducted by the Employer 

earlier had been inherently biased. 

Id. at 933. Finally, we stated that, "[t]he right to arbitrate 

provided . . . essentially the same due process safeguards which 

would have been available through an unbiased hearing. There is 

no evidence suggesting that the arbitration proceeding would have 

been biased. . . . Therefore, there is no due process violation 

in this case." Id. at 933 n.2. 

 Our opinion in Jackson was relied upon by our sister 

court in Armstrong v. Meyers, 964 F.2d 948, 951 (9th Cir. 1992). 

There a discharged university employee filed suit pursuant to 
19 

section 1983, alleging that he had been deprived of property 

without due process of law. In affirming a grant of summary 

judgment in favor of the defendants, the Court of Appeals for the 

Ninth Circuit held that, "A public employer may meet its 

obligation to provide due process through grievance procedures 

established in a collective bargaining agreement, provided, of 

course, that those procedures satisfy due process." Id. at 950. 

The court then turned to the following balancing test established 

by the Supreme Court in Mathews v. Eldridge, 424 U.S. at 335. In 

order to determine whether a particular procedure meets due 

process requirements, three factors must be considered: 

First, the private interest that will be 

affected by the official action; second, the 

risk of an erroneous deprivation of such 

interest through the procedures used, and the 

probable value, if any, of additional or 

substitute procedural safeguards; and 

finally, the Government's interest, including 

the function involved and the fiscal and 

administrative burdens that the additional or 

substitute procedural requirement would 

entail. 

Applying these factors in the public employee context, our sister 

court of appeals recognized that an employee's interest in 

retaining his job is "substantial." 

However, the risk of an erroneous 

determination in the grievance/arbitration 

procedure is not large, and the value of 

additional or substitute procedures is not 

great. Grievance/arbitration procedures are 

a universally accepted method of resolving 

employment disputes, included in countless 

collective bargaining agreements. Although 

[the] union could and did decide not to take 

[the employee's] claim to arbitration, it did 

so under a duty of fair representation, and 

may be sued for beach of that duty if its 
20 

"conduct toward a member of the collective 

bargaining unit is arbitrary, discriminatory, 

or in bad faith." 

964 F.2d at 950 (citation omitted). In holding that the 

grievance/arbitration procedures in place were adequate to meet 

the demands of due process, the court recognized "the strong 

public and private interest in maintaining an effective 

grievance/arbitration process to settle disputes between 

employers and employees." Id. at 951. 

 We are convinced that the reasoning in Armstrong v. 

Meyers applies with equal force in this case. Even where, as 

here, a plaintiff alleges that the defendants acted in concert to 

deprive him both of a meaningful hearing and of arbitration, we 

believe that the administrative process in place has incorporated 

safeguards adequate to resolve these allegations in a manner 

consistent with the demands of due process.6 Significantly, 

 

6 In so holding, we re-confirm our agreement with the 

many courts holding that grievance procedures outlined in 

collective bargaining agreements can satisfy due process 

requirements. See Wallace v. Tilley, 41 F.3d 296 (7th Cir. 1994) 

(grievance procedure outlined in collective bargaining agreement 

can satisfy due process even in cases where public employee has 

bee discharged); Buttitta v. City of Chicago, 9 F.3d 1198, 1206 

(7th Cir. 1993) (due process satisfied where police officer had 

access to post-deprivation grievance procedure under collective 

bargaining agreement); Narumanchi v. Bd. of Trustees of Conn. 

State Univ., 850 F.2d 70, 72 (2d Cir. 1988) (hearing rights 

available to discharged professor under the collective bargaining 

agreement fully satisfied procedural due process even where there 

were unsubstantiated claims of bias); Lewis v. Hillsborough 

Transit Authority, 726 F.2d 664, 667 (11th Cir. 1983) (per 

curiam), cert. denied, 469 U.S. 822 (1984) (grievance procedure, 

if utilized, could eliminate a constitutional violation); Ash v. 

Bd. of Educ. of Woodhaven School Dist., 699 F.2d 822, 827 (6th 

Cir. 1983) (grievance procedures satisfied minimum requirements 

of due process). 
21 

Dykes could have asked a court of common pleas to order 

arbitraton pursuant to the collective bargaining agreement, 

thereby assuring him of the due process to which he was entitled. 

Because he chose not to do so, Dykes is unable to prove a 

violation of 42 U.S.C. § 1983 by SEPTA or by Local 234. We 

conclude, therefore, that Count II of Dykes' complaint was 

appropriately dismissed for failure to state a cause of action.7 

IV. 

 Because we find that the district court properly 

applied Fed. R. Civ. P. 12(b)(6) in dismissing both counts of 

Dykes' complaint, we will affirm the orders of the district 

court. 

 

7 While Dykes elected to appeal the dismissal of the 

complaint rather than seek leave to amend under Fed. R. Civ. P. 

15, this fact alone does not preclude amendment of the complaint. 

Dist. Council 47, American Federation v. Bradley, 795 F.2d 310, 

316 (3d Cir. 1986). This is not a situation, however, where the 

complaint has been dismissed for lack of specificity or some 

other readily curable defect. Given the facts of this case and 

the law as we have stated it, amendment of the complaint will not 

result in its being found sufficient to withstand a renewed 

motion under Fed. R. Civ. P. 12(b)(6). 
22