Appeal from the United States District Court for the Eastern District of Wisconsin. No. 84 C 1246 -- Robert W. Warren, Judge.
Bauer, Wood, and Coffey, Circuit Judges.
The appellant, Theodore Papapetropoulous, appeals the order of the district court dismissing his complaint alleging that the appellee, Milwaukee Transport Services, Inc. ("MTS"), terminated him (Papapetropoulous) from his job as a bus driver without due process of law. We affirm.
The decision of the arbitrator, who upheld the termination of Papapetropoulous, was attached to Papapetropoulous' complaint and reveals that Papapetropoulous was employed as a bus driver for the Milwaukee Transport Services, Inc. and was a member of the Amalgamated Transit Union, Local 998. He was discharged on April 13, 1983, for violating Work Rule 15 of the Collective Bargaining Agreement prohibiting indecent, immoral or improper conduct while on duty or on MTS's property and Work Rule 16 prohibiting unlawful conduct while on duty or on MTS's property. The charge of violating the Work Rules was that Papapetropoulous sexually assaulted an adolescent resident of the Child and Adolescent Treatment Center ("CATC") on March 9, 1983 while on duty as a bus driver. Decision of Arbitrator at 4.*fn1 The record, including the arbitrator's decision reveals that the alleged assault took place when Papapetropoulous stopped his bus at a designated MTS bus stop, approached the young woman, who was the only passenger on the bus, and "forcibly fondled the young woman, asking her to take part in several sexual acts." Id. After leaving the bus, the young woman informed a social worker, Kathleen Golden, at the CATC of the attack. Golden relayed this information to Hal Bursten, the Administrator at CATC, who in turn informed the MTS. The Milwaukee Transport Services conducted an investigation, together with an independent investigation by the Milwaukee County Sheriff's Department, into the alleged incident and based upon that information and "a letter from John N. Lemerond, clinical psychologist at CATC, as well as a memorandum report from Ms. Kathleen Golden, a psychiatric social worker at CATC,"*fn2 terminated Papapetropoulous from his position as an MTS bus driver on April 13, 1983.
The union filed for arbitration to contest the validity of Papapetropoulous' discharge pursuant to Article VI paragraph 6.01 of the Collective Bargaining Agreement. The union and MTS selected an arbitrator from the Federal Mediation and Conciliation Service to conduct the hearing and render a judgment as to the propriety of MTS's action in discharging Papapetropoulous. Id. at 2. The union, Papapetropoulous and MTS each were represented by counsel at this hearing. At the hearing, Papapetropoulous denied "that any of the events which transpired on March 9, 1983, occurred, as described by the complaining witness." Id. at 8. The young woman testified on direct examination that Papapetropoulous was the person who assaulted her. Id. at 7. A review of the arbitrator's decision reveals that during the union's cross-examination of the young woman, she "became emotional, crying and was unable to answer questions on several occasions." Id. at 5. After the witness was unable to compose herself, the arbitrator excused her from further cross-examination. Id. at 6.
On the second day of the hearing, counsel for Papapetropoulous moved to dismiss the arbitration proceeding alleging a lack of opportunity to complete his cross-examination of the complaining witness. The arbitrator noted that "if the testimony of the complaining witness were the sole evidence adduced at hearing by the Company to prove its assertions against grievant, in the absence of full and complete cross-examination, the undersigned would strike the testimony of complaining witness and dismiss the grievance." Id. at 6. However, the arbitrator found that the young woman's story was corroborated by Kathleen Golden, the psychiatric social worker with the CATC, who treated the young woman two to three times per week from May, 1982 through March, 1983 at the CATC facility. Golden testified that within one hour of the alleged sexual assault, the young woman related the story of the sexual assault to her. Id. at 7. The arbitrator admitted Golden's testimony under the excited utterance exception to the hearsay rule, Wis. Stat. 908.03, and concluded that since the woman described the events to Golden within one hour of the event, "there was no time for the complaining witness to fabricate the event . . . ." Id. The arbitrator also noted that Ms. Golden had testified that she was unaware of the victim ever having fabricated a story and further that the victim had a reputation for truthfulness. The arbitrator further stated Golden testified that after the incident the woman became depressed and withdrawn, that she had difficulty sleeping because of nightmares, and that she had missed approximately five weeks of school since "one of the things that she was concerned about in returning to school was how to get there, was she going to take a bus or was she going to walk, was she going to get back on the bus. How was she going to handle that." Id. at 8 (quoting testimony Golden). Because of the closeness in the proximity of time between the alleged attack and the woman's detailed description of the attack to Golden, the woman's reputation for truthfulness and the distinct alteration of her behavior pattern after the incident, the arbitrator concluded that the young woman's story concerning the attack was credible. Thus the arbitrator concluded that "the evidence discussed above clearly establishes the truth of the charges filed against the grievant and the grievance [against MTS] will be dismissed." Id. at 8-9.
On October 1, 1984, Papapetropoulous filed this action against Milwaukee Transport Services under 42 U.S.C. § 1983 alleging in paragraph 16 of his complaint that he was denied due process of law when he was terminated since:
"a. [He] was denied the right to cross-examine the complaining witness;
b. The arbitrator's decision was based solely upon the uncorroborated hearsay testimony of the complaining witness' social worker whose testimony related only what the complaining witness had told to her;
c. The arbitrator applied the wrong burden of proof and sustained the discharge for illegal conduct on a mere preponderance of the evidence."
Papapetropoulous requested that he be given another hearing in order to fully cross-examine the complaining witness or in lieu thereof be reinstated to his prior position as a bus driver with backpay, benefits and compensatory damages in the amount of $25,000.
Milwaukee Transport Services moved to dismiss the complaint before the district court, pursuant to Fed. R. Civ. P. 12(b)(6)*fn3 for failure to state a claim upon which relief could be granted, arguing that there was no state action involved as it is a private entity, that the complaint was identical to an action filed by Papapetropoulous in state court, later removed to federal court and subsequently dismissed by Senior District Judge Gordon of the Eastern District of Wisconsin,*fn4 and that in reality the action was an attempt to ...