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DARRYL BRUTON, Plaintiff
vs.
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, Defendant
 
Case:
C.A. NO. 94-CV-3111
 
Location:
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
 
Date:
August 19, 1994
 
Attorneys:
For DARRYL BRUTON, PLAINTIFF: JOSEPH M. GONTRAM, MC BRIDE, RUCH & GONTRAM, PHILADELPHIA, PA.
For SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, DEFENDANT: C. NEIL PETERSEN, SEPTA LEGAL DEPT., PHILADELPHIA, PA.
 
Court:
WEINER
 
Author:
The Hon. Justice Charles R. Weiner
 

Plaintiff, Darryl Bruton ("Bruton"), brought this action against defendant, Southeastern Pennsylvania Transportation Authority ("SEPTA") for unlawful discrimination in employment based on disability, pursuant to the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. SEC. 701 et seq. and the Americans With Disabilities Act of 1990 ("ADA"), 42 U.S.C. SEC. 12101 et seq. Plaintiff has also alleged a pendant state law claim for breach of contract. Presently before the court is a motion to dismiss by the defendant pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons stated below, the motion is granted in part.

I. STANDARD OF REVIEW

Under Fed. R. Civ. P. 12(b)(6), "the applicable standard of review requires the court to accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the non-moving party." Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989). The question before the court is not whether the plaintiff will ultimately prevail; rather, it is whether the plaintiff could prove any set of fact in support of his claim that would entitle the plaintiff to relief. Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984); Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974).

II. FACTS

The pertinent factual allegations as viewed in the light most favorable to plaintiff, are as follows. Bruton was employed by SEPTA as an operator from approximately December 1985 to May 21, 1992. Until late March 1992, Bruton suffered from untreated alcoholism of which SEPTA, his employer, was aware.

Between 1985 and 1992, Bruton was absent from work on numerous occasions. Plaintiff claims that the majority of these absences were the result of his alcoholism. As a result, Bruton was assessed attendance points. Under SEPTA's collective bargaining agreement with the Transport Workers Union of Philadelphia Local 234 ("Union"), employees are assessed attendance points for various incidents of non-attendance. An employee who reaches twenty-five or more points is subject to progressive discipline each time his point total reaches twenty-five.

During the course of his employment, Bruton was subjected to three progressive discipline actions, including a one day suspension, a three day suspension, and a five day suspension. Finally, on February 18, 1992, Bruton was discharged for accumulating more than 27 points.

Following his discharge, Bruton and the union filed a grievance concerning this discharge. Pursuant to the SEPTA-TWU collective bargaining agreement, the three level grievance procedure was followed. The grievance was denied for the last time on March 17, 1992. During the pendency of the grievance, Bruton was permitted to continue working. On March 1, 1992, Bruton was again late for work and assessed five additional points.

After the third level denial of the grievance, the union asked SEPTA to enter into a last chance agreement. SEPTA agreed to the last chance agreement on March 26, 1992. The last chance agreement provided that Bruton would be suspended for thirty days beginning March 17, 1992 and ending April 16, 1992 and then would be placed on a one year probationary period. If, at any time during the probationary period, Bruton was justifiably disciplined, he would be subject to immediate discharge. Bruton, relying on this last chance agreement, undertook certain actions including treatment for his disability.

On or about April 1, 1992, Bruton was referred through SEPTA's EASE program to an alcohol rehabilitation program called "Rehab After Work". Bruton enrolled in and completed this rehabilitation program and was released to return to work on May 20, 1992. While he was in this program, on or about May 15, 1992, he received a letter directing him to report to the office of his supervisor, Superintendent Michael D. Kelly. On May 21, 1992, one day after he returned to work, Bruton was fired again. The reason for his discharge was the five points assessed to him on March 1, 1992 while he was working through his grievance procedure. The union and Bruton filed a new grievance concerning this discharge and was again denied at all three levels. At no time did the plaintiff or the union request that SEPTA arbitrate the dispute.

III. DISCUSSION

A. Americans with Disabilities Act

SEPTA seeks dismissal of plaintiff's claim under the ADA, contending that the violations complained of occurred before the effective date of Title I of the Act. Title I covers employers having 15 or more employees and became effective July 26, 1992, twenty-four months after the date of its enactment. 42 U.S.C. SEC. 12111. The violations complained of in plaintiff's complaint occurred between February 18, 1992 and May 21, 1992, before the effective date of Title I. However, Title II of the ADA, which covers discrimination by public entities, became effective on January 26, 1992, 18 months after the date of enactment. 42 U.S.C. SEC. 12132. Bruton's claims arose after the effective date of Title II and therefore fall within the purview of the ADA.

Title II, as well as Title I, has been deemed to include a prohibition on employment discrimination. See 28 C.F.R. SEC. 35.140; Petersen v. University of Wisconsin Bd. of Regents, 818 F. Supp. 1276, 1278 (W.D. Wis. 1993) "By including an employment provision in Title II, Congress ensured that all public employers, regardless of size, would be subject to the provisions of the Act beginning January 26, 1992." Id. at 1279. See also, Eisfelder v. Michigan Dept. of Natural Resources, 847 F. Supp. 78, 83 (W.D. Mich. 1993). Since Title II includes employment discrimination, and was in effect at the time the plaintiff's cause of action arose, we cannot say that the plaintiff's claim under ADA fails to state a claim upon which relief may be granted.

B. SEPTA-TWU Labor Agreement as bar to statutory claims.

SEPTA next contends that Bruton fails to state a claim upon which relief can be granted under the ADA and Rehabilitation Act because its discharge of Bruton was strictly in accordance to the SEPTA-TWU labor agreement. SEPTA argues that Bruton was properly fired in compliance with the collective bargaining agreement that existed between SEPTA and the union because Bruton was in violation of that agreement when he accumulated more than 27 attendance points and also when he violated the terms of the last chance agreement. SEPTA avers that Bruton was fired because of his repeated absences and not for being an alcoholic. Thus, SEPTA argues, there is no claim under the ADA or the Rehabilitation Act.

While it is well established, as SEPTA argues, that a union has the authority to make binding contractual agreements on behalf of the employees that it represents, see Bolden v. Southeastern Pennsylvania Transportation Authority, 953 F.2d 807, 826 (3d Cir. 1991), it does not follow that these agreements can preclude a statutory claim. Even if the plaintiff's grievances had reached arbitration, the course SEPTA insists the plaintiff was required to pursue, Bruton is not precluded from judicial resolution of his statutory claims. This is especially so in the cases of collective bargaining agreements, as there is a potential disparity in the interests of a union and the interests of an individual employee. Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 34-35, 114 L. Ed. 2d 26, 111 S. Ct. 1647 (1991); McDonald v. City of West Branch, 466 U.S. 284, 292, 80 L. Ed. 2d 302, 104 S. Ct. 1799 (1984). Congress may well have had this in mind when it enacted the ADA provision which makes it illegal for employers to enter into contracts with labor unions which would result in discrimination against a disabled employee. See 42 U.S.C. SEC. 12112(b)(2). This provision has been incorporated into both Title I and Title II as well as the Rehabilitation Act by the regulations interpreting them. 28 C.F.R. SEC. 41.52(d); 29 C.F.R. SEC. 1630.6; Eisfelder, 847 F. Supp. at 84. Accordingly, we cannot say as a matter of law that plaintiff's statutory claims are barred merely because SEPTA acted in accordance with the provisions of the collective bargaining agreement in firing the plaintiff.

C. Breach of Last Chance Agreement

Septa next argues that plaintiff's claim of breach of contract must be dismissed because any claim under the agreement is subject to binding arbitration. We agree.

SEPTA, as an agency of the Commonwealth, is subject to the Public Employees Relations Act, 43 P.S. SEC. 1101.101, et seq. Similarly, plaintiff is deemed a public employee under the act, and the TWU is an employee organization. PERA provides in pertinent part: Arbitration of disputes or grievances arising out of the interpretation of the provisions of a collective bargaining agreement is mandatory.

43 P.S. SEC. 1101.903. Article II, Sections 201 and 202 of the SEPTA-TWU agreement provides for binding arbitration of employee disputes at TWU's discretion, after the three step grievance process has been exhausted. There is no dispute that plaintiff did not bring his grievance to binding arbitration. Neither is there any allegation that the union breached its fiduciary duty to plaintiff in failing to pursue this remedy. A court must compel arbitration of those claims which are expressly covered by an arbitration agreement regardless of whether or not federal claims in the same action are to be litigated. Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 84 L. Ed. 2d 158, 105 S. Ct. 1238 (1985). Arbitration of grievances being compulsory under the SEPTA-TWU agreement, the claim for breach of the last chance agreement must be dismissed.

D. Punitive damages.

SEPTA avers that, as an agency of the Commonwealth, it is not subject to the invocation of punitive damages. In his response to SEPTA's motion, plaintiff concedes that SEPTA shares the attributes of a municipality and is immune from punitive damages. Plaintiff's prayer for punitive damages, thus, will be stricken.

E. Emotional distress.

Finally, SEPTA argues that Bruton's claim of emotional distress is barred by both sovereign immunity and the Pennsylvania's Worker's Compensation Act ("WCA"). Having reviewed the plaintiff's complaint in its entirety, we are at a lose to determine from where SEPTA has learned that the plaintiff seeks to assert such a claim.

Count I charges a violation of ADA and the Rehabilitation Act, breach of the last chance agreement, and willful violations of the statutory provisions. Count II repetitiously charges SEPTA breached its contractual obligations. The sole use of the word "emotional" is found in P 32, in which plaintiff alleges the statutory and contractual violations resulted in "physical, emotional, psychological and other injuries and compensatory damages". We do not read this averment as alleging an independent claim for intentional infliction of emotional distress. Likewise, nothing in the plaintiff's opposition to the motion indicates that a separate cause of action is plead. Accordingly, we do not need to reach the arguments raised by SEPTA.

CONCLUSION

For the reasons stated above, plaintiff's claims for breach of contract and punitive damages will be dismissed. SEPTA's motion will be denied in all other respects.

ORDER

The motion of defendant Southeastern Pennsylvania Transportation Authority to dismiss the plaintiff's complaint is GRANTED IN PART AND DENIED IN PART.

The motion is GRANTED to the extent it seeks dismissal of plaintiff's claims for breach of contract and punitive damages.

Plaintiff's complaint, to the extent it alleges a claim for breach of contract and punitive damages is DISMISSED WITH PREJUDICE.

The motion is DENIED in all other respects.

IT IS SO ORDERED.

CHARLES R. WEINER