shall make the determination whether a police officer's absence from duty results from an injury incurred in the line of duty, and consequently whether the police officer is entitled to line of duty sick leave. The Port Authority Office of Medical Services investigates absences to determine whether, and for how long, a police officer is entitled to line of duty sick leave. Police officers are not given the opportunity at a pre-determination hearing to prove either that they were injured in the line of duty or that their medical condition would entitle them to sick leave.
Appendix "G" of the collective bargaining agreement sets forth the grievance-arbitration procedures which are applicable to "alleged violations of any provision" of the collective bargaining agreement, with certain exceptions not relevant here. The procedures provide three separate "steps." In broad strokes, Step One permits the grievant to complain in writing to the Superintendent of Police, and to appeal to the Manager of the Labor Relations Division of the Human Resources Department if the grievance has not been settled within ten days. Step Two requires the Manager of the Labor Relations Division to issue a written determination of an appeal from Step One within twenty working days. Any unsettled grievance can be appealed to arbitration as set forth in great detail in Step Three. An arbitrator is selected in accordance with the then-effective Voluntary Labor Arbitration Rules of the American Arbitration Association. The president of the Benevolent Association has the exclusive right to refer to arbitration any unsettled grievance with respect to the application or interpretation by the Port Authority of any provision of the collective bargaining agreement. In addition, the grievant is entitled to representation by the Benevolent Association at any grievance or arbitration meetings.
Officer Walker did not make use of the grievance procedures set forth in the collective bargaining agreement. At oral argument, plaintiffs conceded that the denial of line of duty sick leave is subject to the grievance procedures set forth in the collective bargaining agreement. Transcript of Proceedings, January 7, 1993 ("Tr.") at 9.
The complaint sets forth five claims for relief. First, the proposed plaintiff class claims that members of the class have been deprived of a property interest in their contractual right to paid sick leave benefits. Complaint PP 42-43. Second, the proposed plaintiff class claims that its members have been denied equal protection of the law because they are subject to discipline for work they miss, whereas Port Authority Police management personnel and other civilian employees are not. Complaint P 40. Third, plaintiffs claim that by "actually or constructively terminating medical paid sick leave by ordering a police officer to return to duty without providing them with written documentation or a procedural hearing, the defendants have deprived plaintiff police officers of their property interests and freedom of expression in being treated for their medical injuries pursuant to the First Amendment." Complaint P 41. Fourth, plaintiffs repeat the claim that members of the proposed plaintiff class have been deprived of medical benefits without due process of law; they also claim that the deprivation of medical benefits violated the equal protection rights of the members of the proposed plaintiff class. Complaint PP 42-43. Finally, plaintiffs claim that the disciplining of Police Officers for missing work "as a result of absences which have occurred in the line of duty," violates the due process rights of the members of the proposed plaintiff class. Complaint P 44.
As relief, plaintiffs seek (1) a declaration that the grievance procedures outlined in the collective bargaining agreement violate the plaintiffs' due process, equal protection, and first amendment rights; (2) injunctive relief to remedy these alleged defects; and (3) back pay and reinstatement.
1. Plaintiffs' Due Process Claims
As we understand them, plaintiffs' first, third, fourth, and fifth causes of action essentially allege that the proposed plaintiff class has a "property" right under the fourteenth amendment to line of duty sick leave and that the defendants have deprived them of that right without due process of law. See Pls.' Mem. at 8. Specifically, the proposed plaintiff class contends that its members have been denied due process because they were not given the opportunity to present evidence of entitlement to line of duty sick leave prior to the determination by the Port Authority that they were ineligible. They also contend that the grievance procedure set forth in the collective bargaining agreement is constitutionally inadequate because once the Port Authority determines that a police officer is no longer entitled to line of duty sick leave, that officer is ordered back to work. If the officer does not return to work -- because she believes that her medical condition would make this inappropriate -- she will be listed as absent without leave, and her salary will be suspended. Plaintiffs argue that this economic hardship -- loss of livelihood -- during the pendency of the grievance proceedings renders the grievance procedures constitutionally inadequate.
To state a claim under § 1983, a complaint must allege that the defendants deprived the plaintiffs of a right secured by the Constitution or laws of the United States and that such deprivation was committed by persons acting under color of state law. 42 U.S.C. § 1983. Where the right alleged to have been denied is protected by the fourteenth amendment, the plaintiffs must establish that the deprivation was without due process of law. Costello v. Town of Fairfield, 811 F.2d 782, 784 (2d Cir. 1987). The Port Authority is a state actor for the purposes of § 1983. See, e.g., Raysor v. Port Authority of New York & New Jersey, 768 F.2d 34 (2d Cir. 1985), cert. denied, 475 U.S. 1027, 89 L. Ed. 2d 337, 106 S. Ct. 1227 (1986).
We engage in a two-step analysis when resolving procedural due process claims. The threshold issue is whether plaintiffs assert a property interest protected by the Constitution. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985); Board of Regents v. Roth, 408 U.S. 564, 574, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972); Strong v. Board of Educ. of Uniondale Union Free School Dist., 902 F.2d 208, 211 (2d Cir.), cert. denied, 498 U.S. 897, 112 L. Ed. 2d 208, 111 S. Ct. 250 (1990); Narumanchi v. Board of Trustees of Connecticut State University, 850 F.2d 70, 72 (2d Cir. 1988). If a protected interest is identified, the second step is to determine whether the defendants deprived the plaintiffs of that interest without due process. Loudermill, 470 U.S. at 542-43; Narumanchi, 850 F.2d at 72. We will consider each step in turn.
a. Property Interest
Property interests subject to procedural due process protection are not created by the Constitution; rather they are created and defined by "existing rules or understandings that stem from an independent source such as state law." Roth, 408 U.S. at 577. In Roth, the Supreme Court stated:
To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.
Id. A person's interest in a benefit constitutes a "legitimate claim of entitlement" if it is supported by contractual or statutory language that might be invoked at a hearing. Perry v. Sindermann, 408 U.S. 593, 601, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972); Roth, 408 U.S. at 577.
A collective bargaining agreement is, of course, a contract between employer and employees. As such, it is not surprising, based on the broad language contained in Roth, that courts have uniformly held that a collective bargaining agreement can be the source of a property right entitled to due process protection. See, e.g., Brock v. Roadway Express, Inc., 481 U.S. 252, 260-61, 95 L. Ed. 2d 239, 107 S. Ct. 1740 (1987) (plurality opinion) (employer's right to discharge an employee for cause pursuant to collective bargaining agreement is property interest protected by fifth amendment); Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991) (collective bargaining agreement providing that employee could not be fired without just cause creates property right under due process clause); Johnston-Taylor v. Gannon, 907 F.2d 1577, 1581 (6th Cir. 1990) (collective bargaining agreement providing professor with right to "continuing employment" created protected property interest which could only be terminated in accordance with due process); Handley v. Phillips, 715 F. Supp. 657, 671 (M.D. Pa. 1989) (plaintiffs' expectation of continued employment based on collective bargaining agreement constitutes property interest); see also New Castle County v. Board of Education, 569 F. Supp. 1482, 1485 (D. Del. 1983) ("language in a collective bargaining agreement can create a property interest which implicates due process") (quoting Hayes v. City of Wilmington, 451 F. Supp. 696, 705-06 (D. Del. 1978)). Thus, the issue in this case is not whether a collective bargaining agreement can create a protected property interest, for it can. Rather, the issue is whether the right that this particular collective bargaining agreement allegedly creates -- a right to line of duty sick leave -- is a property right which is subject to due process protection.
The Supreme Court has held that a property interest in continuing public employment can be created, either by statute or contract, where the state is barred from terminating (or not renewing) the employment relationship without cause. Compare Loudermill, 470 U.S. at 538-39 (property interest created by state civil service statute's "for cause" termination provision) with Bishop v. Wood, 426 U.S. 341, 345, 48 L. Ed. 2d 684, 96 S. Ct. 2074 (1976) (no property interest due to absence of "for cause" provision). There is uncertainty, however, over whether other public employment benefits -- such as pension benefits, disability benefits, accrued overtime pay, or compensatory time off -- can constitute property which is subject to due process protection. See generally Portman v. County of Santa Clara, 995 F.2d. 898, 1993 WL 191823 at *6-7 (9th Cir. 1993) (whether entitlement to certain public employment benefits is a constitutionally protected property interest is an "open question").
The Second Circuit has recognized that public employees can have a "property" right to certain disability retirement and pension benefits. See Russell v. Dunston, 896 F.2d 664, 668-69 (2d Cir.) (disability retirement benefits), cert. denied, 498 U.S. 813 (1990); Winston v. City of New York, 759 F.2d 242, 247-49 (2d Cir. 1985) (pension benefits); Basciano v. Herkimer, 605 F.2d 605 (2d Cir. 1978) (disability retirement benefits), cert. denied, 442 U.S. 929, 61 L. Ed. 2d 296, 99 S. Ct. 2858 (1979). In these cases, however, the source of the "property right" was not a collective bargaining agreement. In Russel and Winston the right arose under Article V of the New York State Constitution which provides that "membership in any pension or retirement system of the state or of a civil division therefore shall be a contractual relationship, the benefits of which shall not be impaired." N.Y. Const. art V, § 7. In Basciano the right arose under the Administrative Code of the City of New York.
We think this distinction is critical in light of the Second Circuit's attempted definition of the kinds of rights, created by contract, which are entitled to due process protection. In S & D Maintenance Co. v. Goldin, 844 F.2d 962 (2d Cir. 1988), the court addressed, in the context of a dispute concerning a public contract to maintain parking meters,
the kinds of interests that the Supreme Court has thus far viewed as "property" entitled to due process protection. After first noting that every contract with a state could arguably be thought of as giving rise to a "legitimate claim of entitlement" which would fall within the broad definition of "property" under Roth, the Court wrote:
Goldberg v. Kelly, [397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970),] involved entitlement to welfare benefits conferred by statute upon our poorest citizens to provide for their immediate well-being, if not survival. See also Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976) (due process protection for social security benefits). Board of Regents v. Roth, supra, and Perry v. Sindermann, supra, concerned claims to tenured status in public employment. . . . In these contexts, the Due Process Clause is invoked to protect something more than an ordinary contractual right. Rather procedural protection is sought in connection with a state's revocation of a status, an estate within the public sphere characterized by a quality of either extreme dependence in the case of welfare benefits, or permanence in the case of tenure, or sometimes both, as frequently occurs in the case of social security benefits.
844 F.2d at 966. (footnote omitted). The court also noted that "the course of the law in this Circuit has not moved beyond according procedural due process protection to interests other than those well within the contexts illustrated by Goldberg and Roth." Id. at 967. See also Unger v. Nat'l Residents Matching Program, 928 F.2d 1392, 1399 (3d Cir. 1991) (embracing distinction set forth in S & D Maintenance).
On one occasion the Second Circuit has considered whether an employment benefit created by a collective bargaining agreement constitutes property under the due process clause and answered that question in the negative. In Costello v. Town of Fairfield, 811 F.2d 782 (2d Cir. 1987), two retired employees brought suit claiming that their employer, the Town of Fairfield, had denied them certain pension benefit increases provided for in a collective bargaining agreement without due process of law. The dispute arose because the plaintiffs, who had been employed when the collective bargaining agreement was signed, retired approximately four months before the benefit increases in question went into effect. While all three members of the panel agreed that the complaint should be dismissed, the panel divided as to the rationale. Two judges first distinguished the case from Basciano where the court had held that a city employee who had been denied disability retirement benefits had a "property" interest in those benefits. Mr. Costello's claim was different, the majority concluded, because he was only claiming entitlement to an increase in benefits, as opposed to his entire basic retirement benefits as was the claim in Basciano. The majority further believed that the complaint in essence sounded in contract, and should be dismissed on that basis. They wrote:
Before undertaking to determine if there is an entitlement to an increase [in benefits], there first should be a resolution of the dispute concerning whether the claimed increase is due. Clearly, it is the interpretation of a contract term that is at issue here and the appellants have pursued this contract dispute in the district court under the guise of a due process violation. A contract dispute, however, does not give rise to a cause of action under section 1983.