PHILADELPHIA – A federal appellate court will now consider the claims of a Black SEPTA bus driver who says he was racially discriminated against, when he was terminated after striking a pedestrian on the job.
Keithrollin Thompson, a SEPTA employee since 1994, said he was on duty as a bus driver on July 3, 2018, when he struck a pedestrian at the corner of 32nd and Tasker Streets in Philadelphia. The pedestrian refused medical treatment and left the scene, and the incident was captured on video.
After an investigation, Thompson was fired in August 2018. He claimed a SEPTA senior transportation director showed racial bias towards him in evaluating his case, that white drivers involved in similar incidents to his were not terminated and that his termination was upheld, despite little to no supporting evidence.
Thompson filed his case in February 2020 alleging violation of equal protection and due process claims, and SEPTA moved to dismiss it that May. A first amended version was filed by Thompson in April of last year, followed by a second version in May and was moved to be dismissed by SEPTA in June.
A Nov. 16, 2020 ruling by the U.S. Court for the Eastern District of Pennsylvania dismisses violation of equal protection and due process claims from Keithrollin Thompson, against the Southeastern Pennsylvania Transportation Authority (SEPTA).
Thompson’s claims were dismissed without prejudice and he was granted the opportunity to amend them.
“The Court will grant SEPTA’s motion to dismiss because Thompson fails to properly allege municipal liability against SEPTA and fails to allege he was fired without due process of law,” U.S. District Court for the Eastern District of Pennsylvania Judge Juan R. Sanchez said.
“To the extent Thompson alleges SEPTA has a policy of discriminating against non-white bus operators, he has failed to allege conduct by an official SEPTA policymaker. At best, Thompson alleges SEPTA Senior Director Tom Marcucci is a final decision-maker for SEPTA with regards to terminations. However, his allegation is undermined by his other allegations in the second amended complaint.”
“Thompson’s due process claim will be dismissed because he failed to allege SEPTA’s grievance and arbitration procedure provided insufficient due process. The Third Circuit has held SEPTA’s three-step grievance and arbitration procedure is adequate for due process purposes,” Sanchez said.
The three-step process was: (1) An informal hearing in which a grievant is made aware of the charges against him and recommended discipline, (2) A formal hearing in which evidence is presented and discipline is imposed, and (3) A de novo hearing before the Labor Relations Manager.
Furthermore, as Thompson did not show that a policy, custom, practice or that the individual responsible for his termination established the final policy for SEPTA, the second amended complaint’s factual allegations are insufficient to allege municipal liability against SEPTA, Sanchez ruled.
Sanchez dismissed the equal protection and due process violation claims without prejudice, as Thompson was granted leave to file an amended complaint to cure the deficiencies.
UPDATE
A fourth motion to dismiss towards the plaintiff’s third amended complaint was granted by Sanchez on June 14, dismissing the case with prejudice for failure to state a claim.
“The Court will grant SEPTA’s motion to dismiss because Thompson fails to properly allege municipal liability against SEPTA and fails to allege he was fired without due process of law. To withstand a motion to dismiss under Rule 12(b)(6), ‘a complaint must contain sufficient factual matter, accepted as true’, to ‘state a claim to relief that is plausible on its face.’ A claim is facially plausible when the facts pleaded ‘allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’ The Court must accept all well-pleaded allegations as true and draw all reasonable inferences in Thompson’s favor,” Sanchez said.
“Thompson fails to allege Monell liability on his equal protection claim and fails to allege a due process claim. The Court will thus dismiss both claims. Because Thompson has filed four complaints and amended his allegations numerous times but has still failed to state a claim, the Court will not grant leave to amend and will dismiss the third amended complaint with prejudice.”
Thompson filed notice to appeal the case’s dismissal to the U.S. Court of Appeals for the Third Circuit on July 6.
The plaintiff is represented by Christopher Booth, Jr. of The Booth Law Firm, in Philadelphia.
The defendant is represented by Daniel V. Johns and Anna B. Will Kentz of Cozen O’Connor, also in Philadelphia.
U.S. Court of Appeals for the Third Circuit case 21-02286
U.S. District Court for the Eastern District of Pennsylvania case 2:20-cv-00756
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com