PITTSBURGH – The Port Authority of Allegheny County wants to dismiss a lawsuit brought by transit union members who say they were disciplined for wearing face masks bearing the name of the Black Lives Matter movement, as it says the policy in question was modified before the suit’s filing.
Amalgamated Transit Union Local 85, James Hanna, Sasha Craig and Monika Wheeler first filed suit in the U.S. District Court for the Western District of Pennsylvania on Sept. 30 versus the Port Authority of Allegheny County (PAT). All parties are of Pittsburgh.
“Founded in 2013, Black Lives Matter is an anti-racist social movement seeking to eradicate racial prejudices, seek equal justice, and build power to intervene in systemic violence inflicted on Black and Brown communities by state actors and vigilantes,” the suit stated.
“The BLM movement garnered widespread global support and attention in the wake of the murder of George Floyd by police while in police custody on May 25, 2020. Support for BLM continued to swell worldwide throughout the summer of 2020. The ATU International and Local 85 as organizations have fully endorsed and support the Black Lives Matter movement.”
Shortly thereafter, on July 23, 2020, the defendant allegedly changed its “Uniform Standards for Port Authority Operators” to read as follows: “Buttons, stickers, jewelry and clothing (including masks or other face coverings) of a political or social protest nature are not permitted to be worn.”
The suit said prior to the change, PAT employees had been allowed to promote other social messages and had been wearing masks with a statement that “Black Lives Matter” without any adverse incident, without facing any discipline or threat of discipline, without any interference with their duties and responsibilities and without any interruption in service being provided.
On Sept. 3, Katharine Kelleman, CEO of the PAT, publicly stated on behalf of PAT, “First and foremost, this organization believes that Black lives matter. Period.”
“On Wednesday, Aug. 5, 2020, plaintiffs Craig and Wheeler reported to work wearing face coverings with the message ‘Black Lives Matter’ displayed on the front. On that day, Port Authority management, in a blatant instance of censorship, informed operators Craig and Wheeler that they would be suspended if they did not remove their BLM masks and instead don masks without such a message. Refusing to surrender their right to passive, peaceful expression, operators Craig and Wheeler did not remove their BLM masks. As a result, the Authority refused to permit plaintiffs Craig and Wheeler to continue their work,” the suit said.
On Aug. 13, plaintiff James Hanna, a duly-elected board person (a.k.a. union steward) was on PAT property conducting union business on behalf of Local 85 of the ATU. As an elected board person, Mr. Hanna is charged with the responsibility of representing employees who are threatened with or are receiving discipline in the first step of the grievance procedure under the CBA between the Authority and the Union.
“While conducting a discipline hearing, a supervisor of PAT demanded that Mr. Hanna remove a face mask which he had been wearing as a result of the coronavirus, with lettering across the front reading ‘Black Lives Matter,’ per the suit.
“Upon being told to remove the ‘Black Lives Matter’ mask, Mr. Hanna refused to do so. He was given a direct order to remove it and again refused. He was then advised that PAT was canceling the remainder of the grievance hearings, and was sent home and told to await a call for a disciplinary hearing to impose discipline upon him.”
On Aug. 26, Hanna attended a disciplinary hearing in which he was given a verbal warning as a result of his refusal to remove the “Black Lives Matter” mask and told that any further use of the mask would result in additional discipline up to and including discharge.
According to the litigation, the PAT continues to ban the Black Lives Matter message from operator face coverings and has refused to reverse its unconstitutional policy.
PAT’s counsel filed an answer along with affirmative defenses to the suit on Oct. 20, charging that the policy at issue has been dropped.
“Plaintiffs commenced this lawsuit on Sept. 30, 2020 – after Port Authority had enacted the current uniform policy – seeking declaratory and injunctive relief regarding the application of the former uniform policy. Plaintiffs’ request for equitable relief in conjunction with the proper application of the former uniform policy fails for a lack of standing. By the time plaintiffs commenced this lawsuit, the Port Authority had enacted the current uniform policy and no longer applied the former uniform policy. The law is clear that this Court lacks standing to issue declaratory and injunctive relief as to the constitutionality of a Port Authority policy that is no longer in effect.”
UPDATE
PAT filed a motion to dismiss the complaint for failure to state a claim on Nov. 5.
“Port Authority has a significant interest in ensuring that its public transportation services are not disrupted by personal messages that their employees may choose to display on their Port Authority uniforms while on duty. The current uniform policy imposes a minimal restriction on employee speech because it only prohibits speech at work. Port Authority operators are free to engage in political or social protest activities outside of work,” according to the motion.
“As a matter of law, Port Authority's substantial interest in avoiding debate, hostility, and disruption among its employees and customers – which can reasonably be expected to arise from political or social protest messages that individual employees conveyed on their Port Authority uniforms – substantially outweighs the limited First Amendment interest that Port Authority employees possess in engaging in social protest activities while on duty.”
Additionally, the PAT felt that the plaintiffs did not show it engaged in viewpoint discrimination.
“The admission that Port Authority endorses and supports the Black Lives Matter movement precludes any inference that Port Authority (1) possesses an animus to that movement and (2) adopted a viewpoint–neutral prohibition on face coverings containing political and social protest messages as subterfuge to prohibit only those specific messages involving the Black Lives Matter movement,” per the motion.
For counts of violating the U.S. and Pennsylvania Constitutions through violation of the employees’ rights to free speech and Equal Protection Clause of the First and Fourteenth Amendments and violation of the employees’ rights to the freedom of association, respectively, the plaintiffs are seeking:
• A declaration that defendant’s policy an unlawful restriction on employee free speech and association rights in violation of the First and Fourteenth Amendment and the Equal Protection clause of the U.S. Constitution, as well as Article I Section 7 and 20 of the Pennsylvania Constitution;
• Enjoin defendant from prohibiting employees from wearing masks with the message “Black Lives Matter”;
• Direct defendant to rescind the discipline issued to the individual plaintiffs as well as all other members of Local 85 who have suffered adverse actions by the defendant as a result of their wearing a BLM mask and appropriate make whole remedy of any lost wages;
• An award of plaintiffs’ reasonable attorneys’ fees and costs incurred to bring this action, plus such further relief as the Court deems just and proper.
The plaintiffs are represented by Joseph J. Pass and Patrick K. Lennon of Jubelirer Pass & Intrieri, in Pittsburgh.
The defendant is represented by Brian P. Gabriel of Campbell Durrant and Gregory J. Krock of McGuire Woods, also in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 2:20-cv-01471
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com