                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-14-2003

Janicki v. Sch Dist Elizabeth
Precedential or Non-Precedential: Non-Precedential

Docket 02-2692




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Recommended Citation
"Janicki v. Sch Dist Elizabeth" (2003). 2003 Decisions. Paper 739.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/739


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                                                                NOT PRECEDENTIAL

          UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
                               _________

                                       02-2692
                                      _________

          RONALD S. JANICKI; JOSEPH A. CHECK; MARLENE D. HALL;
               DAVID HRUBOVCAK; PETER J. LAFRANKIE III;
                   ROBERT SALZER; EDWARD STELIGO,

                                          v.

                 ELIZABETH FORWARD SCHOOL DISTRICT;
              PENNSYLVANIA STATE EDUCATION ASSOCIATION

            Ronald Janicki, Joseph Check, Marlene Hall, David Hrubovcak,
               Peter LaFrankie, III, Robert Salzer, and Edward Steligo,

                                                     Appellants
                                      _________

                   On Appeal from the United States District Court
                      for the Western District of Pennsylvania
                              (D.C. Civil No. 99-1859)
                       District Judge: Hon. Gary L. Lancaster
                                     _________

                     Submitted Under Third Circuit LAR 34.1(a)
                                  March 13, 2003
           Before: SLOVITER, NYGAARD, and ALARCÓN*, Circuit Judges
                              (Filed: March 13, 2003)
                                     _________
                            OPINION OF THE COURT


      *
       Hon. Arthur L. Alarcón, Senior Judge, United States Court of Appeals for the
Ninth Circuit, sitting by designation.
                                        _________
ALARCÓN, Senior Judge.

       Ronald S. Janicki, Joseph A. Check, Marlene D. Hall, David Hrubovcak, Peter J.

Frankie, III, Robert Salzer, and Edward Steligo (collectively “Appellants”) were

employed by the Elizabeth Forward School District (“School District”) as substitute or

temporary custodial and maintenance workers. Appellants appeal from the order granting

the School District’s motion for a summary judgment and dismissing their 28 U.S.C.

§ 1983 claim that they were deprived of their right to equal protection of the law in

violation of the Fourteenth Amendment. We affirm because we conclude that the School

District did not violate the Fourteenth Amendment by paying Appellants at a different

rate, or in failing to award the same benefits, from that received by the permanent

employees pursuant to the terms of a collective bargaining agreement (“CBA”) negotiated

by the School District and the Pennsylvania State Education Association (“Union”).

                                             I

       Since 1989, the School District has maintained a list of persons (collectively the

“temporary employees”) willing to work temporarily during the absence of its permanent

custodial and maintenance employees (collectively the “permanent employees”) due to

illness, vacation, sick leave, or the termination of their employment. The temporary

employees were assigned the same custodial or maintenance duties performed by the



                                            -2-
permanent employees. The custodial staff was responsible for cleaning the School

District’s buildings. The maintenance workers kept the facilities operational. The School

District filled vacancies in the permanent employees’ custodial and maintenance positions

from the list of temporary employees.

       The School District’s collective bargaining unit consisted of twenty-seven

employees who were represented in contract negotiations by the Union. The temporary

employees were not represented by the Union. As temporary employees, Appellants

received approximately one-half of the wages paid to the permanent employees. They

did not receive any other benefits. A temporary employee did not have any contractual

arrangement entitling him or her to be hired as a permanent employee whenever a

vacancy occurred, or to receive the same wages and or benefits awarded to the permanent

employees under the CBA.

       The record shows that the CBA between the School District and the permanent

employees’ collective bargaining unit was due to expire on July 30, 1996. The School

District and the Union began negotiations for a new CBA on January 23, 1996. During

the course of these negotiations, the School District stated that it was considering

subcontracting or “outsourcing” the custodial and maintenance work performed by the

permanent employees. The School District informed the Union that by subcontracting, it

could obtain the same services for less money. It also took the position that the Union


                                            -3-
had filed excessive grievances on behalf of the permanent employees.

       The School District and the Union did not enter into a new CBA until sometime

after June of 1998. On January 16, 1997, during the protracted negotiations, the School

District hired two persons from the list of temporary employees to fill two vacant

permanent employee positions. Other vacancies that arose thereafter were not filled until

after the new CBA was executed.

       The 1998 CBA required the School District to fill all permanent employee

vacancies within ninety days. There were twelve vacant positions when the 1998 CBA

took effect. To fill the vacant positions, the School District hired all of the persons who

were on the list of temporary employees interested in accepting a position as permanent

employees.

                                             II

       Appellants filed this action on November 12, 1999 pursuant to § 1983. They

alleged that the School District had violated their rights under the Equal Protection

Clause of the Fourteenth Amendment by denying them the same wages and benefits

awarded to the permanent employees, notwithstanding the fact they performed precisely

the same custodial or maintenance duties. Appellants and the School District filed cross-

motions for summary judgment. The district court denied Appellants’ motion and granted

summary judgment in favor of the School District.


                                            -4-
       The district court had federal question jurisdiction pursuant to 28 U.S.C. § 1331.

We have jurisdiction over this timely appeal pursuant under 28 U.S.C. § 1291. This court

reviews an order granting summary judgment de novo. Sameric Corp. of Del., Inc. v.

City of Philadelphia, 142 F.3d 582, 590 (3d Cir. 1998).

                                              III

       Before this court, Appellants contend that the School District violated their rights

under the Equal Protection Clause by creating two classes of custodial and maintenance

employees who perform precisely the same duties. The permanent employees,

represented by the Union, were compensated at the pay rate set forth in the CBA. They

also received health benefits, vacation pay, sick leave, seniority accrual, and a pension

upon retirement. The temporary employees were paid less and received no benefits. As

temporary employees of the School District, they were not eligible to be members of the

permanent employees’ collective bargaining unit which is represented in negotiations by

the Union.

       In reviewing a claim that government action violates the Equal Protection Clause,

we must first determine the appropriate standard of review. Donatelli v. Mitchell, 2 F.3d

508, 513 (3d Cir. 1993). If state action does not burden a fundamental constitutional

right or targets a suspect class, the “challenged classification must be upheld ‘if there is

any reasonably conceivable state of facts that could provide a rational basis for the


                                             -5-
classification.’” Id. (quoting FCC v. Beach Communications, Inc., 508 U.S. 307, 313

(1993)). If the challenged state action involves a “suspect” classification based on race,

alienage or national origin, or infringes on a fundamental constitutional right, such as the

guarantees of the First Amendment, a court must apply the strict scrutiny standard. Id.

                                              A.

       Appellants contend that the district court should have applied strict scrutiny

instead of the rational basis test because the School District’s classification interfered

with their fundamental constitutional right of association. We disagree. Contrary to

Appellants’ assertion, they were not “kept from Union membership by the tactics of the

School district.” Opening Brief for Appellants at 24. The fact that the School District

decided that it would not fill the open positions in the permanent employees classification

during the negotiations for a new CBA does not demonstrate that the School District

violated Appellants’ First Amendment right to petition the School District during the

course of negotiations to award the permanent employees the same or greater benefits

under the new CBA because of Appellants’ potential future interest in a permanent

position. Appellants have not cited any authority to support the proposition that a

temporary employee has a constitutional right to be hired for a vacant position as a

custodian or maintenance worker solely because the current permanent employees are

included in the collective bargaining unit. Whether a temporary employee of the School


                                             -6-
District has a state-created cause of action to be hired to fill a vacancy is not before us.

Appellants have failed to present evidence to support their contention that “the school

district purposefully enacted a policy to wholly and completely deny the appellants their

associational right to be members of the collective bargaining unit.” Opening Brief for

Appellants at 24. The district court did not err in failing to apply the strict scrutiny test.

                                              B.

       Because the School District created two classifications of employees who

performed the same duties, but provided lessor benefits to one of them, we must next

determine, “if there is any reasonably conceivable state of facts that could provide a

rational basis for the classification.” FCC v. Beach Communications, Inc., 508 U.S. 307,

313 (1993). The School District’s decision to award temporary employees less benefits

than those received by permanent employees was based on its need to save labor costs, to

operate within its budget, and to maintain fiscal integrity. We agree with the district

court that these economic considerations are clearly legitimate governmental interests and

therefore, awarding less benefits to substitute employees is rationally related to these

interests.                                    C.

       Appellants also maintain that the rational basis test is inapplicable where the “state

action [] deliberately injures an individual for the purpose of obtaining or gaining some

leverage in collective bargaining with a third party. . . .” Opening Brief for Appellants at


                                              -7-
15. Appellants allege that the School District attempted to gain leverage in its

negotiations with the Union by labeling Appellants as “temporary” employees but

requiring them to do the jobs of the “permanent” employees. This argument completely

falls apart however, because a number of Appellants and their peers have been

performing the same tasks as “permanent” employees while being compensated as

temporary employees since 1989, well before the contract negotiations began. Appellants

also rely on the Seventh Circuit’s opinion in Esmail v. Macrane, 53 F.3d 176 (7th Cir.

1995) in support of this theory. Their reliance on Esmail is misplaced. In Esmail, the

Seventh Circuit held that the district court erred in dismissing a § 1983 action for failure

to state a violation of the Equal Protection Clause where “the unequal treatment [was] the

result solely of a vindictive campaign by the Mayor.” Id. at 179. The Seventh Circuit

held that the Equal Protection Clause protects a person who presents evidence “that the

action taken by the state, whether in the form of prosecution or otherwise, was a spiteful

effort to ‘get’ him for reasons wholly unrelated to any legitimate state objective.” Id. at

180. Appellants allege that the School District acted solely out of animus when it failed

to fill the vacancies during negotiations with the Union.

       During contract negotiations, an employer has a duty to negotiate in good faith.

U.S. Dep’t of Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 493 (1994). The fact that

the School District did not fill the custodial vacancies during the negotiations for a new


                                             -8-
CBA, however, is not evidence of a spiteful effort to punish the temporary employees that

was wholly unrelated to a legitimate state objective. See Randle v. City of Aurora, 69

F.3d 441, 454 (10th Cir. 1995) (stating that “[t]he mere fact that an employer failed to

follow its own internal procedures does not necessarily suggest that the employer was

motivated by illegal discriminatory intent”). Both a union and an employer may employ

tactics during contract negotiations that put economic pressure on the other party, as long

as the conduct is in good faith and does not violate the law. See, e.g., American Ship

Building Co. v NLRB, 380 U.S. 300, 310 (1965) (holding that an employer may lock out

employees for the purpose of applying economic pressure on a union in support of a

legitimate bargaining position); Local 825, Int’l Union of Operating Eng’rs v. NLRB, 829

F.2d 458, 460-61 (3d Cir. 1987) (same); Equitable Gas Co. v. NLRB, 637 F.2d 980, 983,

992 (3d Cir. 1981) (determining that it was not an unlawful business practice when the

defendant failed to fill a clerk vacancy during contract negotiations); Id. at 992 (holding

that the defendant did not violate the law when there was no substantial evidence that its

decision to subcontract was motivated by other than economic considerations).

       Here, the record shows that the School District had previously engaged a

subcontractor to provide the services formerly performed by its cafeteria and

transportation employees. Article XX of the CBA, submitted to the district court by

Appellants, provides that the School District can subcontract services if the Union has the


                                             -9-
opportunity for prior discussion so long as “no contracting or subcontracting shall result

in the elimination of any position in this bargaining unit or in the furloughing of any

members of the bargaining unit.” Appellants have failed to demonstrate that the School

District’s failure to fill vacancies in the ranks of the permanent employees during the

negotiations for a new CBA was a spiteful effort against Appellants and was wholly

unrelated to its efforts to negotiate an economically prudent CBA.

       The School District’s failure to fill the vacancies was rationally related to the

continued legitimate state interests and did not violate the Equal Protection Clause. The

district court’s decision to grant the defendant’s motion for summary judgment is

AFFIRMED.


_____________________
TO THE CLERK:

       Please file the foregoing opinion.




                            /s/ Judge Arthur L. Alarcon
                            Circuit Judge




                                            -10-
