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November 13, 1987

James A. Dunn, Plaintiff,
New Jersey Transit Corporation; New Jersey Transit Rail Operations, Inc.; Elbur H. Richards; William B. Wagner and Richard J. Buckreis, Defendants

The opinion of the court was delivered by: BISSELL

 This matter arises out of a Complaint filed on August 20, 1986 by James A. Dunn against New Jersey Transit Corp. ("NJTC"), and its subsidiary, New Jersey Transit Rail Operations, Inc. ("NJTROI"), and three employees of NJTROI, Elbur A. Richards, William B. Wagner, and Richard J. Buckreis. Plaintiff, a former sergeant of the New Jersey Transit Police, complains that his termination and a conspiracy to terminate him without due process violated 42 U.S.C. §§ 1983 and 1985. He seeks an order of reinstatement, compensatory and punitive damages, attorneys fees and costs of suit.

 All defendants move to dismiss or for summary judgment on several grounds: (1) that plaintiff's exclusive remedy is under the Railway Labor Act; (2) that all defendants are immune from suit in federal court under the Eleventh Amendment; and (3) that the Complaint fails to state claims under 42 U.S.C. §§ 1983 and 1985. Because items outside the Complaint itself have been submitted by both sides, the motion is addressed as one for summary judgment. Fed. R. Civ. P. 12(b).

 A brief review of the facts is necessary. Plaintiff was employed by NJTROI as a sergeant of the NJTROI Police Department from January 1, 1983 until his termination on February 6, 1986. In April 1985, plaintiff was charged with insubordination for disobeying orders of defendant Elbur H. Richards, plaintiff's supervisor, and Joseph Slawsky, Director of New Jersey Transit Police. (Baker Aff. at para. 2). During his employment, plaintiff was represented by and was an officer of Local 304 of the Patrolmen's Benevolent Association ("PBA"). Consistent with the grievance procedures provided in an unratified collective bargaining agreement between the union and NJTROI, NJTROI held hearings on the two insubordination charges in October 1985 and January and March of 1986. Id. at PP 3,4. The hearings were conducted by defendant William B. Wagner, then a full-time hearing examiner employed by NJTROI. At the conclusion of the hearings, Mr. Wagner recommended that Mr. Dunn be discharged for both incidents of insubordination. Said recommendation was affirmed by Frank Flynn, the NJTROI Assistant Vice-President, and resulted in the discharge of plaintiff. Id. at P 4. Through the PBA, plaintiff appealed Mr. Flynn's decision to James Baker, the Director of Labor Relations of NJTROI, who sustained Mr. Flynn's decision in connection with both incidents of insubordination in March and May of 1986. Id. at P 5.

 In his Complaint, plaintiff alleges that defendants deprived him of his liberty and property interests without due process of law. (Complaint at para. 13). His property interest, i.e., the right not to be discharged "without just cause and without a fair and impartial trial" allegedly derives from the collective bargaining agreement between NJTROI and the PBA. Id. at P 8. The specific source of plaintiff's asserted liberty interest is nowhere alleged in the Complaint. The alleged denial of procedural due process is explained as follows:

On October 3, 1985, and January 21 and 24 and March 18, 1986, defendant Wagner conducted hearings on said charges at which defendants Buckreis and Richards, among others, testified.
During said hearings, defendant Wagner acted as both prosecuting and hearing officer, denied plaintiff discovery, and denied him the opportunity to cross-examine hostile witnesses.

 (Complaint at paras. 11, 12).

 The allegation supporting plaintiff's claim under 42 U.S.C. § 1985 is that "before and during the events herein described [in the Complaint], all individual defendants, covertly and overtly conspired to deprive plaintiff of these rights." Id. at P 14.

 The first two grounds for dismissal presented by defendants, i.e., the exclusiveness of plaintiff's remedy under the Railway Labor Act, and the defendant's sovereign immunity, question this Court's subject matter jurisdiction and thus must be addressed before the Court can adjudicate plaintiff's claims on the merits.

 Both sides agree that the usual discharge case is a "minor dispute" as defined by the Railway Labor Act ("RLA"), 45 U.S.C. § 151 et seq., and therefore, a discharged rail employee complaining that his termination violated the collective bargaining agreement must seek redress from the National Railroad Adjustment Board ("the Board" or "the NRAB") to the exclusion of the federal courts. Andrews v. Louisville & Nashville Railroad Co., 406 U.S. 320, 32 L. Ed. 2d 95, 92 S. Ct. 1562 (1972). However, plaintiff asserts that the exclusivity of the RLA remedies depends upon the existence of an enforceable collective bargaining agreement. Even though he bases his property rights in his Complaint on his right under the collective bargaining agreement to be discharged only for just cause, plaintiff now maintains that the collective bargaining agreement was not an effective contract because it was unratified, therefore, the exclusive RLA procedures are not applicable.

 If no contract existed between the NJTROI and the PBA, the Court would find that plaintiff had no property right of which he was deprived. Contrary to plaintiff's assertion, based on an erroneous interpretation of Judge Fisher's opinion in Port Authority Police Benevolent Ass'n, Inc. v. Port Authority of New York and New Jersey, Civil No. 85-1477 (D.N.J. December 19, 1985), he did not have a property interest in his job merely because he was a public employee. See Conrad v. Delta Air Lines, Inc., 494 F.2d 914, 916 (7th Cir. 1974) ("In the absence of a statute or an agreement, an employer may discharge his employee for cause or without cause, and the Act (i.e., the RLA) does not limit the employer's right to discharge to instances involving cause."); Nicoletta v. North Jersey Dist. Water Supply Comm'n, 77 N.J. 145, 150, 390 A.2d 90 (1978) ("Under the common law, the employer, even though a public employer, has the right to discharge such employee (not hired for a fixed term or protected by any statutory tenure such as under the New Jersey Civil Service Rules, contractual commitment or a collective bargaining agreement) with or without cause.") Defendants point out that the New Jersey Civil Service Rules do not apply to NJTROI employees. (Defendants' Reply Brief at 3 n. 2).

 Additionally, under the authority of Board of Regents of State Colleges v. Roth, 408 U.S. 564, 572-74, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972) and Bishop v. Wood, 426 U.S. 341, 348, 48 L. Ed. 2d 684, 96 S. Ct. 2074 (1976), plaintiff has no liberty interest of which he was allegedly deprived because he does not allege that his discharge resulted in damage to his reputation or the foreclosure of opportunities for future employment.

 However, the Court cannot find the RLA inapplicable and dismisses plaintiff's Complaint for lack of property and liberty interests because defendants maintain that the unratified collective bargaining agreement constituted a valid contract. They assert that a contract by performance existed because "both NJTRO and the PBA followed procedures for resolution of grievances and appeals of disciplinary procedures which were contained in the unratified agreement, including the clause which provides ...

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