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DANESE v. KNOX

July 6, 1993

GASPAR DANESE, individually and as President of the Port Authority Police Benevolent Association, Inc.; THE PORT AUTHORITY POLICE BENEVOLENT ASSOCIATION, INC.; and MELANIE WALKER, Plaintiffs,
v.
CHARLES KNOX, as Superintendent of Police of the Port Authority of New York and New Jersey Police Department; THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY POLICE DEPARTMENT; DR. PILAR CARBAJAL, as Medical Director of the Port Authority of New York and New Jersey; and THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Defendants.



The opinion of the court was delivered by: LEONARD B. SAND

 SAND, J.

 Plaintiff Melanie Walker, a former police officer employed by the defendant Port Authority of New York and New Jersey Police Department ("Port Authority"), brings this action pursuant to 42 U.S.C. § 1983, on behalf of a class of similarly situated police officer employees of the Port Authority (the "proposed plaintiff class"). As of this date, no class has been certified by the Court. The Port Authority Benevolent Association ("Benevolent Association"), the certified bargaining agent for the police officer employees of the Port Authority, and Gaspar Danese, the president of the Benevolent Association, are co-plaintiffs.

 Walker alleges a denial of her due process, equal protection, and first amendment rights in connection with the Port Authority's failure to provide her with "line of duty" sick leave which plaintiff claims was guaranteed to her under a collective bargaining agreement. Presumably, she asserts these claims both in her individual capacity and as the class representative. The complaint also names as defendants Charles Knox, Superintendent of the Port Authority Police Department, Dr. Pilar Carbajal, Medical Director of the Port Authority, and the Port Authority of New York and New Jersey.

 The defendants have moved to dismiss the complaint under Fed. R. Civ. P. 12(b)(6) and for sanctions under Fed. R. Civ. P. 11. The principal issues before the Court are whether the "right" of the members of the proposed plaintiff class to certain disability benefits under a collective bargaining agreement is "property" under the fourteenth amendment, and, if so, whether the deprivation procedures in the collective bargaining agreement provide the members of the proposed plaintiff class with all the process that is "due" them under the fourteenth amendment. For the reasons that follow, the defendants' motion to dismiss is granted. Defendants' motion for sanctions is denied.

 BACKGROUND

 On or about August 22, 1991, Walker was ordered to submit to an examination by Dr. Martin Duke, an employee of the Port Authority Office of Medical Services. Dr. Duke determined that Walker's injury was sustained in the line of duty and that Walker should not return to work immediately.

 Walker was examined by her personal physician and by the Port Authority medical staff several times during the next two months. Finally, on October 28, 1991, Walker was examined by Dr. Taubman of the Port Authority Office of Medical Services who concluded that she was physically fit and should return to work, though she should receive a medically restricted assignment, i.e., light duty. Plaintiff claims that Dr. Taubman ignored her complaint of continued pain and a loss of function of the left hand and arm. On this same day, Walker's personal physician determined that she would not be fit to return to work until, at the earliest, November 12, 1991. The Port Authority Office of Medical Services never consulted with Officer Walker's personal physician regarding his diagnosis.

 Officer Walker did not return to work. As a result, she was listed as absent without leave on October 29, 1991, and her pay was suspended. Plaintiff was ordered to report for medical examinations by the Port Authority's doctors several times in the next few months. Plaintiff contends that during some of these meetings, she was not actually examined by the medical staff. On February 8, 1992, Walker was advised by letter that based on examinations performed by the Port Authority Office of Medical Services, the Port Authority had determined that she was fit for duty. The letter further advised her that as a result of her failure to report for work, a recommendation was being made for her termination.

 On March 10, 1992, Walker was charged with insubordination for being absent without leave. These charges were pending before the Port Authority Trial Board (the "Board") at the time that this lawsuit was filed. Plaintiff claims that the sole issue to be determined at these proceedings is whether Walker had reported to work or not; in other words, the denial of Walker's benefits and her ability to return to work would not be addressed before the Board. The procedures governing disciplinary proceedings are attached to the collective bargaining agreement as Document H, and there is no contention in the complaint that these procedures are violative of due process.

 On August 27, 1992, after the complaint was filed, Walker's disability pension application was granted by the New York State Police and Fire Retirement System. Axelrod Aff. at P 11 & Ex. D. The pension was made effective, retroactively, to February 18, 1992. Id. at Ex. E. Plaintiffs appear to contend that this controversy is not moot because "had Ms. Walker been paid a proper salary pursuant to her collective bargaining agreement, her pension would have gone into effect after September 1, 1992, thereby resulting in her loss of approximately six-and-a-half months of additional pensionable salary." Id. at P 11. Defendants do not contend that the controversy is moot in their memorandum in support of the motion to dismiss, nor did they raise that argument at oral argument. See Brock v. Roadway Express, Inc., 481 U.S. 252, 258, 95 L. Ed. 2d 239, 107 S. Ct. 1740 (1987) (due process challenge of constitutional adequacy of procedures not moot because controversy falls within "capable of repetition, yet evading review" exception to case-and-controversy requirement).

 The Collective Bargaining Agreement

 Section XIX(3)(a) of the Memorandum of Agreement between the Port Authority of New York and New Jersey and the Port Authority Police Benevolent Association, Inc. (the "collective bargaining agreement") provides, in relevant part, that any police officer on sick leave because of an injury incurred in the line of duty will receive his base annual salary plus all applicable benefits for a period not to exceed two years. The agreement also provides that the Superintendent of Police 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

 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.

 DISCUSSION

 1. Plaintiffs' Due Process ...


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