Molina v. Pennsylvania Social Service Union, Service Employees International

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

FRANCISCO MOLINA, : Civil No. 1:19-CV-00019

:

Plaintiff, :

:

v. :

:

PENNSYLVANIA SOCIAL SERVICE :

UNION, SERVICE EMPLOYEES :

INTERNATIONAL, et al., :

:

Defendants. : Judge Jennifer P. Wilson

MEMORANDUM

This is a civil rights case arising out of the deduction of union dues from a

union member’s paychecks. Before the court are two motions for summary

judgment filed by the Defendants. For the reasons that follow, the motions are

granted.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY1

Defendant Service Employees International Union, Local 668 (“Local 668”

or “the union”), represents a union of approximately 130 non-supervisory

employees of Lehigh County, Pennsylvania (“Lehigh County” or “the county”).

(Doc. 55 ¶ 1; Doc. 62 ¶ 1.) On behalf of the county’s employees, Local 668

entered into a collective bargaining agreement (“CBA”) with the county, which

1 The facts in this section are substantially derived from the Defendants’ statement of material

facts and the Plaintiff’s statement in response. (See Docs. 55, 62.) A portion of the facts is also

derived from the Plaintiff’s amended complaint and the Defendants’ answers to the amended

complaint. (See Docs. 20, 46–47.)

was effective from January 1, 2014 to December 31, 2018. (See Doc. 20-1 at 6.)

The CBA contained a “Union Security” provision, which provided in relevant part

as follows:

3.1 Each employee, who on the effective date of this Agreement is a

member of the Union, and each employee who becomes a member after

the date shall maintain his/her membership in the Union, provided that

such employee may resign from the Union during a period of fifteen

(15) days prior to the expiration of this Agreement. The payment of

dues and assessments uniformly required of the membership shall be

the only requisite employment condition.

3.2 The Employer agrees to deduct the bi-weekly membership dues

from the pay of those employees who individually request in writing

that such deductions be made. The amounts to be deducted shall be

certified to the Employer by the Union, and the aggregate deductions

of all employees shall be remitted together with an itemized statement

to the Union by the last day of the succeeding month, after such

deductions are made. Except as otherwise provided in Section 3.1 of

this Article, the authorization shall be irrevocable during the term of the

Agreement.

(Doc. 20-1.)

Plaintiff Francisco Molina (“Molina”) was employed as a non-supervisory

employee with the Office of Children and Youth Services of Lehigh County from

October 2006 to August 2018. (Doc. 55 ¶ 2; Doc. 62 ¶ 2.) On October 9, 2006,

Molina completed an application for membership in the union. (Doc. 55 ¶ 3; Doc.

62 ¶ 3.) At the same time, Molina signed a written authorization for Lehigh

County to deduct union dues from his paycheck and transmit those dues directly to

the union. (Doc. 55 ¶ 3; Doc. 62 ¶ 3.) The written authorization provided as

follows:

I authorize my Employer to deduct from my wages each and

every month my Union dues owing to PSSU/Service Employees

International Union, Local 668, affiliated with AFL/CIO as a result of

my membership therein, and I direct that such amounts so deducted be

sent to the Offices of the Union on my behalf.

This authorization shall be irrevocable for a period of one year

or until the termination of the applicable collective bargaining

agreement, whichever occurs sooner, irrespective of my membership

status in the Union. This authorization shall automatically renew and

shall be irrevocable for successive periods of one year unless written

notice of revocation is given to the Union and the employer not more

than fifteen (15) days prior to the termination date of the initial or any

renewed irrevocable period.

(Doc. 29-2 at 11.) Molina’s application to join the union was accepted, and he

remained a member of the union from October 2006 to July 2018. (Doc. 55 ¶¶ 4,

7; Doc. 62 ¶¶ 4, 7.) During his time as a member of the union, Molina was elected

to the position of shop steward. (Doc. 55 ¶ 6; Doc. 62 ¶ 6.)

On July 20, 2018, the union received a letter from Molina stating that he

wished to resign as a member of the union. (Doc. 55 ¶ 7; Doc. 62 ¶ 7.) On August

14, 2018, Molina was dismissed from his position with Lehigh County. (Doc. 20 ¶

32; Doc. 46 ¶ 32; Doc. 47 ¶ 32.) Despite Molina having resigned his union

membership in July 2018, Lehigh County continued to deduct union dues from his

paycheck until August 17, 2018. (Doc. 20 ¶ 37; Doc. 46 ¶ 37; Doc. 47 ¶ 37.)

Molina filed a complaint to challenge the deduction of union dues from his

paycheck and the limits on his ability to resign from the union on January 7, 2019,

which initiated this case. (Doc. 1.) The next day, the union refunded the union

dues that had been deducted from Molina’s paychecks for all pay periods between

his resignation from the union and his dismissal from employment with Lehigh

County. (Doc. 20 ¶ 39; Doc. 47 ¶ 39.) Molina then filed an amended complaint on

February 11, 2019, naming as defendants the union, the Lehigh County Board of

Commissioners (“the board”), and the president of the union, Stephen Catanese

(“Catanese”). (Doc. 20.) In filing his amended complaint, Molina voluntarily

dismissed his claims against Defendants Phil Armstrong, M. Judith Johnston, and

Lehigh County Office of Children and Youth Services. (Doc. 21.)

The amended complaint raised three counts. In Count I, Molina asserted

that the limits on his ability to resign from the union violated his First Amendment

rights. (Doc. 20 ¶¶ 43–50.) In Count II, Molina asserted that the deduction of

union fees from his paychecks violated his First Amendment rights. (Id. ¶¶ 51–

57.) This claim was expressly based on the Supreme Court’s decision in Janus v.

Am. Fed’n of State, Cty. & Mun. Employees, Council 31, __ U.S. __, 138 S. Ct.

2448 (2018). (Doc. 20 ¶ 54 (“Defendants violated Mr. Molina’s First Amendment

rights as explained in Janus, 138 S. Ct. 2448.”)) In Count III, Molina argued that

his due process rights were violated because neither Lehigh County nor the union

provided adequate procedures for him to object to his association with the union or

the deduction of dues from his paychecks. (Id. ¶¶ 58–67.)

On March 4, 2019, the union and Catanese (“Catanese”) moved to dismiss

Molina’s amended complaint. (Doc. 27.) The board filed a separate motion to

dismiss on the same date. (Doc. 28.) United States District Judge Yvette Kane

granted the motions to dismiss in part on July 18, 2019. (Docs. 40–41.)

Specifically, Judge Kane dismissed all claims against Catanese, dismissed Count I

in its entirety, and dismissed Count II to the extent it was based on the recovery of

dues that had been deducted after Molina’s resignation from the union. (Doc. 41 at

1–2.) Accordingly, the case proceeded only as to Counts II and III of Molina’s

amended complaint, with the claim in Count II limited to the dues that were

deducted from Molina’s paycheck before his resignation from the union. (Id. at 2.)

Following the resolution of the motions to dismiss, the board filed an answer to the

amended complaint on September 10, 2019, and the union did the same on

September 11, 2019. (Docs. 46–47.)

On October 4, 2019, the union filed a motion for summary judgment. (Doc.

50.) The board filed a separate motion for summary judgment on October 7, 2019,

in which it joined the union’s arguments for summary judgment. (Doc. 52.) On

the same day, Judge Kane conducted a telephone conference with the parties,

during which the court stayed all fact discovery pending the resolution of the

Defendants’ motions for summary judgment. (Doc. 51.) The union then filed a

brief in support of its motion for summary judgment on October 8, 2019, after

which the board filed an amended motion for summary judgment to specify that it

was joining the arguments made in the union’s brief. (Docs. 56–57.) Molina filed

a brief opposing the union’s motion on October 18, 2019, and the union filed a

reply brief on November 1, 2019. (Docs. 61, 63.) The board joined the union’s

reply brief on November 3, 2019. (Doc. 64.)

The case was reassigned from Judge Kane to the undersigned pursuant to a

verbal order from Chief United States District Judge Christopher C. Conner on

November 19, 2019. The union subsequently filed a notice of supplemental

authority under Local Rule 7.36. (Doc. 67.)

JURISDICTION

This court has jurisdiction under 28 U.S.C. § 1331, which allows a district

court to exercise subject matter jurisdiction in civil cases arising under the

Constitution, laws, or treaties of the United States.

STANDARD OF REVIEW

A court may grant a motion for summary judgment when “there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). A dispute of fact is material if resolution of

the dispute “might affect the outcome of the suit under the governing law.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is

not precluded by “[f]actual disputes that are irrelevant or unnecessary.” Id. “‘A

dispute is genuine if a reasonable trier-of-fact could find in favor of the

nonmovant’ and ‘material if it could affect the outcome of the case.’” Thomas v.

Tice, 943 F.3d 145, 149 (3d Cir. 2019) (quoting Lichtenstein v. Univ. of Pittsburgh

Med. Ctr., 691 F.3d 294, 300 (3d Cir. 2012)).

In reviewing a motion for summary judgment, the court must view the facts

in the light most favorable to the non-moving party and draw all reasonable

inferences in that party’s favor. Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 288

(3d Cir. 2018) (citing Scheidemantle v. Slippery Rock Univ. State Sys. of Higher

Educ., 470 F.3d 535, 538 (3d Cir. 2006)). The court may not “weigh the evidence”

or “determine the truth of the matter.” Anderson, 477 U.S. at 249. Instead, the

court’s role in reviewing the facts of the case is “to determine whether there is a

genuine issue for trial.” Id.

The party moving for summary judgment “bears the initial responsibility of

informing the district court of the basis for its motion, and identifying those

portions of ‘the pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any,’ which it believes demonstrate the

absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). The non-moving party must then

oppose the motion, and in doing so “‘may not rest upon the mere allegations or

denials of [its] pleadings’ but, instead, ‘must set forth specific facts showing that

there is a genuine issue for trial. Bare assertions, conclusory allegations, or

suspicions will not suffice.’” Jutrowski, 904 F.3d at 288–89 (quoting D.E. v. Cent.

Dauphin Sch. Dist., 765 F.3d 260, 268–69 (3d Cir. 2014)).

Summary judgment is appropriate where the non-moving party “fails to

make a showing sufficient to establish the existence of an element essential to that

party’s case, and on which that party will bear the burden of proof at trial.”

Celotex, 477 U.S. at 322. “The mere existence of a scintilla of evidence in support

of the plaintiff’s position will be insufficient; there must be evidence on which the

jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252. “Where

the record taken as a whole could not lead a rational trier of fact to find for the

non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co.,

Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

THE PARTIES’ SUMMARY JUDGMENT ARGUMENTS2

Defendants argue they should be granted summary judgment as to Plaintiff’s

First Amendment claim because Plaintiff voluntarily joined the union, and union

dues deducted from the paycheck of an employee who has voluntarily joined a

2 Because the board has joined the union’s arguments for summary judgment, see Docs. 52, 57,

64, the court will refer to the union’s arguments as the Defendants’ arguments throughout the

remainder of this opinion.

union do not violate the First Amendment. (Doc. 56 at 10.) Defendants argue that

the Supreme Court’s holding in Janus applies only to non-union members who are

compelled to pay fees to support a union and says nothing about the relationship

between unions and union members. (Id. at 11–12.) Defendants then argue that

they should be granted summary judgment as to Molina’s due process claim

because (1) the deduction of union dues from his paycheck did not amount to state

action, (2) his voluntary decision to join the union did not deprive him of any

protected interest, and (3) Molina was not harmed by any alleged lack of

procedural protections. (Id. at 14–17.)

Molina raises three arguments in opposition to Defendants’ motion. First,

Molina argues that summary judgment is inappropriate because genuine issues of

material fact preclude summary judgment. (Doc. 61 at 11–14.) Second, Molina

argues that the court should either defer ruling on Defendants’ motion or order

additional discovery because Defendants rely on evidence that is unavailable to

Molina. (Id. at 14–16.) Third, Molina argues that Defendants are not entitled to

judgment as a matter of law because he never affirmatively waived his First

Amendment rights under Janus and because Defendants have failed to establish

that their procedures satisfy constitutional requirements. (Id. 16–19.)

Defendants argue in reply that no genuine issues of material fact preclude

summary judgment because the remaining factual issues are immaterial to

resolution of the case. (Doc. 63 at 8–11.) Defendants further argue that Molina’s

request for additional discovery should be denied because Molina does not identify

any material factual issues that would require additional discovery. (Id. at 11–14.)

Finally, Defendants argue they are entitled to judgment as a matter of law because

no waiver of First Amendment rights is required where an employee voluntarily

joins a union and because Molina’s due process claim does not satisfy the elements

necessary for such a claim. (Id. at 14–21.)

In analyzing Defendants’ motions for summary judgment, the court will first

address Molina’s request for additional discovery. The court will then analyze

whether any genuine disputes of material fact preclude summary judgment.

Finally, the court will analyze whether Defendants are entitled to judgment as a

matter of law with regard to the merits of Molina’s claims.

DISCUSSION

A. Molina’s Request for Additional Discovery Is Denied

When a party opposing a motion for summary judgment shows that it

“cannot present facts essential to justify its opposition,” the court may allow the

parties additional time for discovery. Fed. R. Civ. P. 56(d). “If discovery is

incomplete, a district court is rarely justified in granting summary judgment, unless

the discovery request pertains to facts that are not material to the moving party’s

entitlement to judgment as a matter of law.” In re Avandia Mktg., Sales & Prods.

Liab. Litig., 945 F.3d 749, 761 (3d Cir. 2019) (quoting Shelton v. Bledsoe, 775

F.3d 554, 568 (3d Cir. 2015)).

To properly request additional discovery for purposes of opposing summary

judgment, “a party must indicate to the district court its need for discovery, what

material facts it hopes to uncover and why it has not previously discovered the

information.” Dinnerstein v. Burlington Cty. College, 764 F. App’x 214, 217 n.1

(3d Cir. 2019) (quoting Radich v. Goode, 886 F.2d 1391, 1393–94 (3d Cir. 1989)).

A properly filed request for additional discovery under Rule 56(d) is generally

granted “as a matter of course.” Avandia, 945 F.3d at 761 (quoting Shelton, 775

F.3d at 468). A request for additional discovery does not need to be made through

a formal motion and can instead be raised through the brief opposing summary

judgment. Shelton, 775 F.3d at 567–68. The decision of whether to permit

additional discovery is left to the discretion of the district court. Woloszyn v. Cty.

of Lawrence, 396 F.3d 314, 324 n.6 (3d Cir. 2005) (citing Bradley v. United States,

299 F.3d 197, 206 (3d Cir. 2002)).

In this case, Molina requests additional discovery through his brief opposing

Defendants’ motion for summary judgment and through a declaration from his

counsel, David R. Osborne. (See Doc. 61 at 14–16; Doc. 61-2.) In his declaration,

Attorney Osborne clarifies that Molina seeks discovery as to six categories of

information: (1) those portions of “Defendants’ internal records” that are necessary

to verify the authenticity of documents on which Defendants rely; (2) information

on the rights and benefits afforded to members of the union; (3) information on

what is expected of a shop steward in the union; (4) information on the process the

union followed after receiving Molina’s resignation letter; (5) a copy of a letter that

was purportedly sent from the union to the county after Molina’s resignation from

the union; and (6) evidence regarding the continuing validity of Molina’s signed

membership card and dues deduction authorization. (Doc. 61-2 ¶¶ 11–16.)

Attorney Osborne asserts that such information is material to resolution of the

motion for summary judgment because Molina alleges “that Defendants violated

his constitutional rights and failed to provide due process, including a meaningful

opportunity to object to continued seizure of his funds or a clearly defined process

for asserting such an objection.” (Id. ¶ 17.)

Attorney Osborne specifies that through additional discovery, Molina

expects to obtain evidence that the union believed that membership cards and dues

deductions signed prior to January 10, 2018 were invalid, and that the union

informed its members of that belief. (Id. ¶ 18.) Attorney Osborne further notes

that Molina expects to obtain evidence that the Defendants have policies that

(1) violate public employees’ constitutional rights not to subsidize

union speech by failing to require an affirmative waiver of such rights

before any money is taken from them; (2) fail to require notice of such

rights or the right to resign one’s union membership; (3) fail to provide

the constitutionally required process, including a meaningful

opportunity to object to continued seizure of his funds or a clearly

defined process for asserting such an objection; and (4) allow, condone,

encourage, or require unconstitutionally arbitrary, ad hoc, punitive, and

otherwise deficient treatment of public employees wishing to exercise

their constitutional rights.

(Id. ¶ 19.)

Attorney Osborne notes that he has been unable to obtain the desired

additional information because discovery has been stayed since October 7, 2019.

(Id. ¶ 21.) Attorney Osborne notes his belief that discovery requests that Molina

already propounded prior to the stay are reasonably calculated to obtain the

information that Molina seeks to obtain. (Id. ¶ 22.)

Defendants argue that the additional discovery Molina seeks is not material

to resolution of this case. (Doc. 63 at 11–14.) Specifically, Defendants argue that

information on the union’s process for handling resignations and the letter that was

sent regarding Molina’s resignation are not material because the only claims that

remain viable relate to the deduction of union dues prior to Molina’s resignation.

(Id. at 12–13.) Defendants further argue that information relating to union

members’ rights and benefits and the duties of a shop steward are not material

because that information is not relevant to the resolution of any legal issue before

the court. (Id. at 13.) Finally, Defendants argue that discovery of internal records

to verify the authenticity of documents is not necessary because Molina does not

contest the validity of his membership application or dues deduction authorization,

which are the only documents relied upon by Defendants. (Id. at 13.)

The court agrees with Defendants that the additional information Molina

seeks is not material to the resolution of the Defendants’ motions for summary

judgment. Information on the rights and benefits that union members enjoy and

information on the duties of a shop steward in the union are plainly not material to

Molina’s remaining claims, which are predicated solely on the deduction of union

dues from his paychecks prior to his resignation from the union. Information

pertaining to Molina’s resignation from the union and the period of time after he

resigned from the union is not material because Molina’s claims were dismissed to

the extent that they were based on the recovery of dues paid after Molina’s

resignation from the union. (See Doc. 41.) Molina also does not need additional

information to verify the authenticity of documents, because he does not contest

the authenticity of his membership application or dues deduction authorization,

which are the only documents necessary to resolve this case. Molina’s desire to

obtain evidence regarding the continuing validity of his union membership card is

also not material because Molina admits that he was a member of the union

through the end of June 2018. (See Doc. 20 ¶ 30; Doc. 62 ¶ 4.)

Finally, as for Molina’s desire to obtain evidence regarding the continuing

validity of his dues deduction authorization, the court concludes that such evidence

is not material because it constitutes impermissible parol evidence. The parties

agree that Molina’s dues deduction authorization constitutes a contract that is

subject to rules of contract interpretation. (See Doc. 56 at 6; Doc. 61 at 13.) Under

Pennsylvania law, evidence extrinsic to a contract may only be introduced to

interpret the contract when the language of the contract is ambiguous.

Ramalingam v. Keller Williams Realty Grp., Inc., 121 A.3d 1034, 1046 (Pa. Super.

Ct. 2015). Thus, although “a court may consider extrinsic evidence to resolve

contractual ambiguities, an opposing party may not offer extrinsic evidence to

create an ambiguity that does not exist within the language of the contract.” Patel

v. Dhudak, __ F. Supp. 3d __, No. 3:17-CV-02243, 2019 WL 6465507, at *6

(M.D. Pa. Dec. 2, 2019) (citing Int’l Union, United Auto., Aerospace & Agric.

Implement Workers of Am., 188 F.3d 130, 145 (3d Cir. 1999)).

Molina’s dues deduction authorization in this case contained the following

language regarding the term of the contract:

This authorization shall be irrevocable for a period of one year or until

the termination of the applicable collective bargaining agreement,

whichever occurs sooner, irrespective of my membership status in the

Union. This authorization shall automatically renew and shall be

irrevocable for successive periods of one year unless written notice of

revocation is given to the Union and the employer not more than fifteen

(15) days prior to the termination date of the initial or any renewed

irrevocable period.

(Doc. 29-2 at 11.) This language clearly and unambiguously defined the term of

the parties’ agreement: the dues deduction authorization automatically renewed

every year and remained in effect until the employee either validly revoked it or

until the collective bargaining agreement expired. Thus, although Molina seeks

discovery of extrinsic evidence regarding the continuing validity of his dues

deduction authorization, see Doc. 61-2 ¶ 16, the court would not be permitted to

consider such evidence in construing the contract because the language of the

contract is unambiguous. Ramalingam, 121 A.3d at 1046. Accordingly, because

the additional discovery Molina seeks is not material to his claims, his request for

additional discovery is denied.

B. There Are No Genuine Issues of Material Fact

The court will next consider whether genuine issues of material fact preclude

the entry of summary judgment. Molina argues that there is a genuine issue of

material fact because Defendants have not presented any evidence on the

continuing validity of his membership card or his dues deduction authorization.

(Doc. 61 at 11–14.)

Under Federal Rule of Civil Procedure 56(a), a court may only grant a

motion for summary judgment if “there is no genuine dispute as to any material

fact.” Fed. R. Civ. P. 56(a). The entry of summary judgment, however, is not

precluded by “[f]actual disputes that are irrelevant or unnecessary.” Anderson, 477

U.S. at 248. “‘A dispute is genuine if a reasonable trier-of-fact could find in favor

of the nonmovant’ and ‘material if it could affect the outcome of the case.’”

Thomas, 943 F.3d at 149 (quoting Lichtenstein, 691 F.3d at 300).

The issues of fact that Molina argues preclude the entry of summary

judgment are not material to resolution of this case. Molina notes that Defendants

have not presented any evidence on the continuing validity of his membership

card, but he does not dispute that he was a member of the union through the end of

June 2018. (See Doc. 20 ¶ 30; Doc. 62 ¶ 4.) Any factual dispute regarding the

validity of Molina’s membership card is therefore immaterial to resolution of this

case because Molina does not dispute that he was a member of the union during the

relevant period.

The continuing validity of Molina’s dues deduction authorization also does

not present a genuine issue of material fact. As noted above, the language of

Molina’s dues deduction authorization clearly and unambiguously stated that the

dues deduction authorization would automatically renew every year and would

remain in effect until the employee either validly revoked it or until the CBA

expired. (See Doc. 29-2 at 11.) It is undisputed that the CBA remained in effect at

all relevant times and that Molina did not revoke his dues deduction authorization

until he resigned from the union in July 2018. (See Doc. 20-1 at 6; Doc. 55 ¶ 7;

Doc. 62 ¶ 7.) Therefore, there is no genuine issue of material fact as to the

continuing validity of Molina’s dues deduction authorization during the period

relevant to Molina’s remaining claims, which pertain only to the deduction of

union dues prior to his resignation from the union. The court accordingly

concludes that no genuine issue of material fact precludes the entry of summary

judgment.

C. Defendants Are Entitled to Judgment as a Matter of Law on

Molina’s First Amendment Claim Because Janus Does Not Apply to

Claims Brought by Union Members

Having concluded that there is no genuine issue of material fact, the court

turns its attention to the issue of whether Defendants are entitled to judgment as a

matter of law with regard to Molina’s First Amendment claim. The starting point

for the court’s analysis is Janus, 138 S. Ct. 2448, because Molina’s First

Amendment claim is expressly based on that case. (See Doc. 20 ¶ 54 (“Defendants

violated Mr. Molina’s First Amendment rights as explained in Janus, 138 S. Ct.

2448.”))

In Janus, the Court considered the constitutionality of an Illinois law that

required public employees to subsidize a union, regardless of whether the

employees were members of the union. Janus, 138 S. Ct. at 2459–60. The

plaintiff was a non-union member public employee who was required to pay fees

to subsidize a union under the law. Id. at 2461. The Court held that requiring non-

union members to subsidize a union violated the First Amendment’s ban on

compelled speech:

This procedure violates the First Amendment and cannot continue.

Neither an agency fee nor any other payment to the union may be

deducted from a nonmember’s wages, nor may any other attempt be

made to collect such a payment, unless the employee affirmatively

consents to pay. By agreeing to pay, nonmembers are waiving their

First Amendment rights, and such a waiver cannot be presumed.

Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461

(1938); see also Knox, 567 U.S., at 312–313, 132 S.Ct. 2277. Rather,

to be effective, the waiver must be freely given and shown by “clear

and compelling” evidence. Curtis Publishing Co. v. Butts, 388 U.S.

130, 145, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967) (plurality opinion);

see also College Savings Bank v. Florida Prepaid Postsecondary Ed.

Expense Bd., 527 U.S. 666, 680–682, 119 S.Ct. 2219, 144 L.Ed.2d 605

(1999). Unless employees clearly and affirmatively consent before any

money is taken from them, this standard cannot be met.

Id. at 2486.

Defendants argue that Janus is inapposite in the present case because Janus

prohibits only the compelled payment of union fees by non-union members,

whereas Molina voluntarily joined the union and paid dues as a member of the

union. (Doc. 56 at 11–12.) Defendants argue that Molina’s voluntary payment of

union dues as a member does not violate the First Amendment. (Id. at 10.)

Molina acknowledges that the Janus holding was “in the context of union

nonmembers,” but argues that the “animating principle behind Janus should apply

equally to existing union members and future employees as well.” (Doc. 61 at 17.)

Molina argues that he has not adequately waived his First Amendment rights under

Janus, and that the deduction of his union dues therefore violates his First

Amendment rights. (Id. at 18–19.) Defendants argue in reply that no waiver is

required under Janus when an employee voluntarily joins a union. (Doc. 63 at 14–

15.)

The court agrees with Defendants. The undisputed facts show that Molina

joined the union, signed a dues deduction authorization, and remained a member

until resigning his membership in 2018. (See Doc. 29-2 at 11; Doc. 55 ¶¶ 3–4;

Doc. 62 ¶ 3–4.) Thus, because Molina was a member of the union when his dues

were deducted, Janus is inapposite. See Janus, 138 S. Ct. at 2486 (“Neither an

agency fee nor any other payment to the union may be deducted from a

nonmember’s wages, nor may any other attempt be made to collect such a

payment, unless the employee affirmatively consents to pay. By agreeing to pay,

nonmembers are waiving their First Amendment rights, and such a waiver cannot

be presumed.” (emphasis added)).

Molina’s argument that the “animating principle” of Janus should be

extended to union members is unavailing. (See Doc. 61 at 17.) The Court’s

reasoning in Janus was that a law requiring a non-union member to pay fees to

support a union is compelled speech. See Janus, 138 S. Ct. at 2464, 2486. Thus,

the animating principle of Janus was not that the payment of union dues violates

the First Amendment, but rather that compelling non-union members to support a

union by paying fees violates the First Amendment. Molina agreed to pay union

dues as part of a contract with the union in exchange for union membership, so

deducting union dues from his paycheck does not violate his rights under the First

Amendment. See Cohen v. Cowles Media Co., 501 U.S. 663, 672 (1991) (“[T]he

First Amendment does not confer . . . a constitutional right to disregard promises

that would otherwise be enforced under state law.”). This conclusion is supported

by the decisions of numerous federal courts around the country that have

concluded that Janus does not apply to claims brought by union members.3

Defendants’ motions for summary judgment are therefore granted as to Molina’s

First Amendment claim.

D. Defendants Are Additionally Entitled to Judgment as a Matter of

Law Because They Did Not Act Under Color of State Law

The court will next address Defendants’ argument that Molina’s claims fail

for lack of state action. (See Doc. 56 at 15–16.) Molina’s claims in this case are

3 See Louisville City Sch. Dist. Bd. of Educ. v. Ohio Ass’n of Pub. Sch. Emps., No. 5:19-CV-

01509, 2020 WL 1930131, at *6 (N.D. Ohio Apr. 21, 2020); Bennett v. Am. Fed.’n of State, __

F. Supp. 3d __, No. 4:19-CV-04087, 2020 WL 1549603, at *4–5 (C.D. Ill. Mar. 31, 2020); Durst

v. Or. Educ. Ass’n, __ F. Supp. 3d __, No. 1:19-CV-00905, 2020 WL 1545484, at *4 (D. Or.

Mar. 31, 2020); Campos v. Fresno Deputy Sheriff’s Ass’n, __ F. Supp. 3d __, No. 1:18-CV-

01660, 2020 WL 949915, at *4 (E.D. Cal. Feb. 27, 2020); Loescher v. Minn. Teamsters Pub. &

Law Enforcement Employees’ Union, Local No. 320, __ F. Supp. 3d __, No. 19-CV-01333, 2020

WL 912785, at *7 (D. Minn. Feb. 26, 2020); Quirarte v. United Domestic Workers AFSCME

Local 3930, __ F. Supp. 3d __, No. 19-CV-01287, 2020 WL 619574, at *6 (S.D. Cal. Feb. 10,

2020); Grossman v. Haw. Gov’t Employees Ass’n/AFSCME Local 152, __ F. Supp. 3d __, No.

18-CV-00493, 2020 WL 515816, at *6 n.9 (D. Haw. Jan. 31, 2020); Hendrickson v. AFSCME

Council 18, __ F. Supp. 3d __, No. 18-CV-01119, 2020 WL 365041, at *6 (D.N.M. Jan. 22,

2020); Mendez v. Cal. Teachers Ass’n, 419 F. Supp. 3d 1182, 1186 (N.D. Cal. 2020); Hernandez

v. AFSCME Cal., 424 F. Supp. 3d 912, 924 (E.D. Cal. 2019); Smith v. Teamsters Local 2010,

No. 19-CV-00771, 2019 WL 6647935, at *9 (C.D. Cal. Dec. 3, 2019); Smith v. N.J. Educ. Ass’n,

425 F. Supp. 3d 366 (D.N.J. 2019); Oliver v. SEIU Local 668, 415 F. Supp. 3d 602, 608 (E.D.

Pa. 2019); Anderson v. SEIU Local 503, 400 F. Supp. 3d 1113, 1116 (D. Or. 2019); Seager v.

United Teachers L.A., No. 2:19-CV-00469, 2019 WL 3822001, at *2 (C.D. Cal. Aug. 14, 2019);

Cooley v. Cal. Statewide Law Enforcement Assoc., 385 F. Supp. 3d 1077, 1080 (E.D. Cal. 2019);

O’Callaghan v. Regents of the Univ. of Cal., No. 19-CV-02289, 2019 WL 2635585, at *3 (C.D.

Cal. June 10, 2019); Bermudez v. SEIU, Local 521, No. 18-CV-04312, 2019 WL 1615414, at *2

(N.D. Cal. Apr. 16, 2019); Crockett v. NEA-Alaska, 367 F. Supp. 3d 996, 1008 (D. Alaska 2019);

Belgau v. Inslee, No. 18-CV-05620, 2018 WL 4931602 (W.D. Wash. Oct. 11, 2018).

brought under 42 U.S.C. § 1983, which allows a plaintiff to bring a claim for the

deprivation of his civil rights. Section 1983 states in relevant part:

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of the United States or

other person within the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at law, suit in equity, or

other proper proceeding for redress. . . .

42 U.S.C. § 1983. To establish a constitutional violation under § 1983, a plaintiff

must show that the defendants’ actions were done under color of state law, or, in

other words, that the defendants’ alleged misconduct involved “state action.”

Sprauve v. West Indian Co., Ltd., 799 F.3d 226, 229 (3d Cir. 2015).

Although liability under § 1983 requires state action, it does not necessarily

require that such state action be committed by a government actor. An action by a

private individual can satisfy the state action requirement if “there is such a ‘close

nexus between the State and the challenged action’ that seemingly private behavior

‘may be fairly treated as that of the State itself.’” Brentwood Acad. v. Tenn.

Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001) (quoting Jackson v.

Metro. Edison Co., 419 U.S. 345, 351 (1974)).

Determining whether state action is present in a case involving “an activity

that is significantly encouraged by the state or in which the state acts as a joint

participant . . . requires tracing the activity to its source to see if that source fairly

can be said to be the state. The question is whether the fingerprints of the state are

on the activity itself.” Leshko v. Servis, 423 F.3d 337, 340 (3d Cir. 2005).

Three post-Janus district court decisions in this circuit have considered

whether the deduction of union fees from an employee’s paycheck constitutes state

action. Two decisions from this district confronted the same facts that were at

issue in Janus—that is, fees that were deducted from the paychecks of non-union

members—and concluded that there was state action in such a situation. See

Wenzig v. SEIU, __ F. Supp. 3d __, No. 1:19-CV-01367, 2019 WL 6715741, at *4

n.5 (M.D. Pa. Dec. 10, 2019) (finding that defendants acted under color of state

law when they deducted fees from non-union members’ paychecks); accord

LaSpina v. SEIU Pa. State Council, No. 3:18-CV-02018, 2019 WL 4750423, at *8

(M.D. Pa. Sept. 30, 2019). The Eastern District of Pennsylvania, on the other

hand, found that there was no state action on facts that were indistinguishable from

the facts of this case—union members seeking to recover dues under Janus. See

Oliver, 415 F. Supp. 3d at 609–12. The court in Oliver noted that in deducting

dues from the union member’s paycheck, the government employer was “simply

acting as a transfer agent carrying out the separate agreement between the union

and its member.” Id. at 611. The court therefore concluded that there was no state

action sufficient to support a § 1983 claim:

The union’s right to collect the dues is not created by the

Commonwealth; it is created by the union’s contract with its members.

The Commonwealth’s role as employer is strictly ministerial,

implementing the instructions of the employee. The union would

ultimately collect its due regardless, but by some other means. It cannot

credibly be said that by affording the convenience of a dues check-off

a public employer is “significantly encouraging” the assignment or that

the employer is its “source” under Leshko. As a result, the Union is not

involved in state action by collecting dues pursuant to an agency-shop

agreement with the employer.

Id. at 612.

The court finds the Eastern District’s reasoning in Oliver persuasive and

concludes that the deduction of union dues from Molina’s paycheck does not

amount to state action sufficient to support a § 1983 claim. The plain terms of

Molina’s dues deduction authorization indicate that the dues were deducted from

his paycheck on his behalf to satisfy his obligation to pay dues to the union. (See

Doc. 29-2 at 11.) Thus, “[t]he union’s right to collect the dues is not created by the

Commonwealth; it is created by the union’s contract with its members.” Oliver,

415 F. Supp. 3d at 611–12. In performing the purely ministerial function of

deducting dues from Molina’s paycheck and transferring them to the union on

Molina’s behalf, the county was not performing a state action because the source

of the action is Molina’s contract with the union, not the state. See Leshko, 423

F.3d at 340 (determining whether state action is present “requires tracing the

activity to its source to see if that source fairly can be said to be the state”); Oliver,

415 F. Supp. 3d at 611–12. The court accordingly concludes that Defendants are

entitled to judgment as a matter of law as to all of Molina’s remaining claims

because their alleged wrongdoing was not state action under § 1983.

E. Defendants Are Entitled to Judgment as a Matter of Law on

Molina’s Due Process Claim

Finally, even assuming that there is state action, Defendants are entitled to

judgment as a matter of law on Molina’s due process claim because Molina’s right

to due process was not harmed.

To prove a violation of procedural due process rights, a plaintiff must show

that “(1) Defendants deprived him of an individual liberty interest that is

encompassed within the Fourteenth Amendment’s protection, and (2) the

procedures Defendants made available to him did not provide due process of law.”

Steele v. Cicchi, 855 F.3d 494, 507 (3d Cir. 2017) (citing Hill v. Borough of

Kutztown, 455 F.3d 225, 233–34 (3d Cir. 2006)). A plaintiff asserting a violation

of procedural due process rights “must have taken advantage of the processes that

are available to him or her, unless those processes are unavailable or patently

inadequate.” Holland v. Rosen, 895 F.3d 272, 297 (3d Cir. 2018) (quoting Alvin v.

Suzuki, 227 F.3d 107, 116 (3d Cir. 2000)). “A procedural due process violation

cannot have occurred when the governmental actor provides apparently adequate

procedural remedies and the plaintiff has not availed himself of those remedies.”

Elsmere Park Club, L.P. v. Town of Elsmere, 542 F.3d 412, 423 (3d Cir. 2008)

(quoting Alvin, 227 F.3d at 116).

Molina’s due process claim asserts that Defendants did not provide

meaningful procedures for him to object to his continuing association with the

union or to object to the deduction of union dues from his paycheck. (Doc. 20 ¶¶

62–63.) This claim fails for two reasons. First, as noted above, Molina was not

deprived of an individual liberty interest. His union dues were deducted from his

paycheck to satisfy his contractual obligation to the union and did not violate his

First Amendment rights. Second, the undisputed facts show that Molina did not

attempt to resign from the union until 2018, and that when he did so the

Defendants processed the resignation and ceased deducting union dues from his

paychecks. (See Doc. 20 ¶¶ 28–31, 39; Doc. 46 ¶¶ 28–31, 39; Doc. 47 ¶¶ 28–31,

39.) Thus, Defendants are entitled to judgment as a matter of law because Molina

failed to avail himself of available remedies, and, when he did avail himself of

those remedies, they adequately protected his rights. See Elsmere Park Club, 542

F.3d at 423.

CONCLUSION

For the foregoing reasons, Defendants’ motions for summary judgment

(Docs. 50, 57) are granted. An appropriate order follows.

s/Jennifer P. Wilson

JENNIFER P. WILSON

United States District Court Judge

Middle District of Pennsylvania

Dated: May 8, 2020