Armington v. School Dist. of Philadelphia, Civ. A. No. 90-3698.

767 F. Supp. 661

Charles ARMINGTON v. SCHOOL DISTRICT OF PHILADELPHIA.

Civ. A. No. 90-3698.

United States District Court, E.D. Pennsylvania.

January 22, 1991.

Sharon Dietrich, Philadelphia, Pa., for plaintiff.

Andrew M. Rosen, Philadelphia, Pa., for defendant.

MEMORANDUM

LUDWIG, District Judge.

Plaintiff and defendant move for summary judgment. Defendant asserts that this 42 U.S.C. § 1983 claim is time-barred by a two-year statute of limitations. The underlying constitutional issue is whether defendant as plaintiff's employer had reasonable suspicion to require plaintiff to submit to a drug test.¹ Fed.R.Civ.P. 56(b).

On June 5, 1990 plaintiff Charles Armington filed this action claiming that the School District of Philadelphia had violated his fourth amendment rights on February 5, 1988 when it directed him to undergo a urinalysis. Plaintiff was a part-time school bus driver. Upon his refusal to take the test, his employment was suspended. The complaint alleges that eventually he was constructively discharged. Complaint at ¶ 33. Plaintiff does not contend that he was deprived of due process of law, but limits his cause of action to the alleged illegality of the required test. See Tr. of Oral Arg. at 2.

I.

The following are agreed facts:²

Charles Armington was employed by the School District as a part-time bus driver on September 3, 1980. During his employment by the School District, Mr. Armington was a member of Local 1201 of the International Brotherhood of Firemen and Oilers, AFL-CIO ("Local 1201"). On February 5, 1988, Mr. Armington drove Route 2654, from the Widener Garage to the Levering School. Selma Jones, a bus attendant, rode the entire length of the route. Mr. Armington was about fifteen minutes late for work on February 5, 1988. At the corner of Arnold and Winona, Mr. Armington had a confrontation with an angry parent, who expressed displeasure that he was late. The remainder of Mr. Armington's route on February 5, 1988 was completed without incident.

On February 5, 1988 at approximately 8:55 a.m., a parent, who identified herself as Ms. Thompson and indicated that her son is picked up at the corner of Arnold and Winona, called the Transportation Services Department of the School District and complained about the driver of Route 2654. The parent told Transportation Services that the driver of her son's bus was late and could not stand up, and that she smelled marijuana in the bus. Ms. Thompson had never complained to Transportation Services before. Wanda Diggs, Administrator of Quality Services, decided that the driver of Route 2654 should be tested for drug use. Ms. Diggs' decision was based solely on the information contained in the "bus complaint/follow-up report" taken from Ms. Thompson. Mr. Armington's drug test was ordered pursuant to Article IX, Section 27(b) of the collective bargaining agreement between the School District and Local 1201.

George Phillips, a street supervisor for the School District, was instructed to meet Mr. Armington at the Levering School and to take him to Health Services for a drug test. Mr. Phillips had no authority to revoke the decision to test Mr. Armington for drug use. Mr. Phillips entered Mr. Armington's bus at the Levering School, but did not see or smell evidence of marijuana use. Mr. Phillips did not contact either Selma Jones or other witnesses to Mr. Armington's behavior that day before Mr. Armington was required to submit to the drug test. Mr. Phillips did not smell marijuana on Mr. Armington nor did he observe any evidence that Mr. Armington was intoxicated on February 5, 1988. Mr. Phillips and Mr. Armington travelled together to Health Services, where the test was to be administered.

Mr. Armington was met at Health Services by a representative of Local 1201. Mr. Armington did not want to be tested, because he felt that it was a violation of his rights, and he feared that he would test positive for alcohol because he had drunk several cocktails at a party the night before. Mr. Armington refused the drug test. Mr. Phillips reported Mr. Armington's refusal to his supervisor. Mr. Phillips told Mr. Armington that he was suspended as a result of his decision to refuse the test. On February 5, 1988, no School District employee told Mr. Armington that he could be fired for refusing the test, nor did Mr. Armington ask any School District employee whether or not he could be fired for refusing the test.

A hearing was held before Personnel Administrator Vicky Jones on March 10, 1988, as a result of Mr. Armington's refusal of the drug test. At that hearing, Mr. Armington was charged with insubordination under Article IX, Section 27(b) of the collective bargaining agreement for failure to submit to an appropriate medical examination on February 5, 1988. Based on Mr. Armington's entire work record and the charge of insubordination, Ms. Jones recommended Mr. Armington's termination to Robert Kovalchik, Manager of Non-Instructional Personnel, on March 11, 1988. Mr. Armington was informed of Ms. Jones' recommendation.

Mr. Armington had a hearing before Mr. Kovalchik on April 21, 1988, based on the same charge considered by Ms. Jones. In the letter scheduling the hearing before Mr. Kovalchik, Mr. Armington was advised that his status with the School District might be affected as a result of the hearing before Mr. Kovalchik. Based on Mr. Armington's entire work record and the charge of insubordination, Mr. Kovalchik recommended Mr. Armington's termination to George Branch, Acting Executive Director of Personnel Operations, on May 2, 1988. Mr. Branch approved the recommendation of dismissal. Mr. Branch's approval is the final step by the administration before dismissal, and Mr. Armington's termination was to be recommended to the Board of Education.

A letter of termination to Mr. Armington, dated May 16, 1988, was drafted. Mr. Armington believed that he had had the last hearing to which he was entitled. Mr. Armington would have been entitled to an appeal of his discharge to the Board of Education and then to the Court of Common Pleas under the Local Agency Law, or to request that his union take an appeal to a neutral arbitrator pursuant to the Collective Bargaining Agreement. Mr. Armington believed that he would lose retirement money if he were fired, rather than resign. Plaintiff did not ask any School District administrator about his pension rights or the effect that termination would have on his retirement contributions made during his employment with the School District. Mr. Armington resigned because he believed that he would be fired, he had been advised to do so by the union, and he feared losing his retirement money if fired.

Stip. at ¶¶ 1-40.

II.

As the parties agree, the applicable limitations period for plaintiff's § 1983 claim is two years. Rose v. Bartle, 871 F.2d 331, 347 (3d Cir.1989).³ Def. mem. at 2; pltf. mem. at 1. Their dispute concerns when the claim accrued. Compare Def. mem. at 2 ("Plaintiff was aware in his own mind on February 5, 1988, that requiring him to submit to drug testing violated his rights"), with pltf. mem. at 1 ("Plaintiff filed his lawsuit within two years of his separation from employment with the School District. He submitted his resignation letter on June 7, 1988").⁴

The accrual of plaintiff's § 1983 claims is governed by federal law. Sandutch v. Muroski, 684 F.2d 252, 254 (3d Cir.1982); In re City of Philadelphia, 705 F.Supp. 1097, 1099 (E.D.Pa.1989). See also 2 J. Cook & J. Sobieski, Civil Rights Actions 4.02, at 4-22.14 (1990). A cause of action accrues under federal law "when the plaintiff becomes aware, or should have become aware, of both the fact of injury and its causal connection to the defendant, although the plaintiff need not know that the defendant's conduct is tortious or unlawful." Sowers v. Bradford Area School District, 694 F.Supp. 125, 136 (W.D.Pa. 1988), aff'd, 869 F.2d 591 (3d Cir.), judgment vacated for reconsideration, 490 U.S. 1002, 109 S.Ct. 1634, 104 L.Ed.2d 150 (1989), judgment reinstated, 887 F.2d 262 (3d Cir.1989), cert. denied, ___ U.S. ___, 110 S.Ct. 840, 107 L.Ed.2d 835 (1990). See also Sandutch, 684 F.2d at 254.

According to defendant, plaintiff's allegation of injury relates to the occurrence on February 5, 1988 when the School District directed plaintiff to submit to the drug test. Plaintiff concedes that he may have had an immediate cause of action for the suspension that resulted from his refusal on that date to be tested.⁵ He argues that a separate cause of action accrued on June 7, 1988 when his employment was constructively terminated. Tr. of Oral Arg. at 5-7. See Huggins v. Fulton, 505 F.Supp. 7, 8 (M.D.Tenn.1980) ("Distinguished from those plaintiffs who were fired is the plaintiff in this case who submitted his resignation and thereby defined his own accrual date").

In Delaware State College v. Ricks, 449 U.S. 250, 257, 101 S.Ct. 498, 503-04, 66 L.Ed.2d 431 (1980), the Supreme Court held:

Determining the timeliness of plaintiff's EEOC complaint ... requires us to identify precisely the "unlawful employment practice" of which he complains.... Mere continuity of employment, without more, is insufficient to prolong the life of a cause of action for employment discrimination.

See also United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977); Price v. Litton Business Systems, Inc., 694 F.2d 963 (4th Cir. 1982).

Here, the limitations period on plaintiff's claim of constructive discharge did not begin to run with his suspension. The constructive discharge claim did not accrue until the loss of employment occurred. See Centifanti v. Nix, 865 F.2d 1422, 1433 (3d Cir.1989) ("Even if we did not determine that the cause of action continued to accrue each day plaintiff's reinstatement petition was outstanding, we would nevertheless find the complaint not barred by the statute of limitations" because plaintiff's injury did not occur until his ...