06-5208 Robert Turinski v. Local 104 International Association of Fire Fighters

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
Nos. 06-5206 & 06-5208
_______________
ROBERT TURINSKI,
Appellant
v.
LOCAL 104 INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS; CITY OF
WILKES-BARRE; THOMAS M. LEIGHTON, Mayor, Individually and in his Official
Capacity; JACOB LISMAN, Fire Chief, Individually and as a Supervisor,
Appellees
THOMAS E. KOSCIOLEK,
Appellant
v.
LOCAL 104 INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS; CITY OF
WILKES-BARRE; THOMAS M. LEIGHTON, Mayor, Individually and in his Official
Capacity; JACOB LISMAN, Fire Chief, Individually and as a Supervisor,
Appellees
_______________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Nos. 04-cv-01919, 04-cv-01920, 04-cv-01955 & 04-cv-01957)
District Judge: Honorable A. Richard Caputo
_______________
Argued January 8, 2008

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*
Honorable J. William Ditter, Jr., District Judge for the Eastern District of
Pennsylvania, sitting by designation.
2
Before: FUENTES and JORDAN, Circuit Judges, and DITTER,* District Judge.
(Filed March 12, 2008)
CYNTHIA L. POLLICK, ESQUIRE (ARGUED)
The Employment Law Firm
126 South Main Street, Suite 201
Pittston, PA 18640
Attorney for Appellants
STEPHEN J. HOLROYD, ESQUIRE (ARGUED)
Jennings Sigmond
510 Walnut Street
The Penn Mutual Towers, 16th Floor
Philadelphia, PA 19106-3683
Attorney for Appellee Local 104 International
Assoc. of Fire Fighters
JOHN G. DEAN, ESQUIRE (ARGUED)
Elliott, Greenleaf & Siedzikowski
201 Penn Avenue, Suite 202
Scranton, PA 18503
DEBORAH H. SIMON, ESQUIRE
Elliott, Greenleaf & Siedzikowski
925 Harvest Drive
Suite 300, Union Meeting Corporate Center V
Blue Bell, PA 19422
Attorneys for Appellees, City of Wilkes-Barre
Thomas M. Leighton, Mayor, Individually and in his Official
Capacity and Jacob Lisman, Fire Chief, Individually and as
a Supervisor

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1
Turinski’s appeal (06-5206) and Kosciolek’s appeal (06-5208) were consolidated for
all purposes on January 31, 2007.
3
_______________
OPINION OF THE COURT
_______________
DITTER, District Judge.
Appellants Robert Turinski and Thomas Kosciolek appeal the District Court’s
grant of summary judgment dismissing their amended complaints.1 The appellants’ assert
that they were constructively discharged from the Wilkes-Barre fire department when
they were forced to choose between retirement or demotion without a hearing or notice of
just cause. Because we conclude that the appellants failed to exhaust the due process
procedures available to them and failed to properly plead and support their First
Amendment claims we will affirm the judgment of the District Court.
I. Facts
We write for the parties and therefore provide only a brief summary of the facts.
Robert Turinski began working for the City of Wilkes-Barre as a firefighter in 1975. He
was hired as a private and was appointed to be an assistant chief in February of 2000 by
Mayor Thomas McGroarty. Thomas Kosciolek was hired as a private in 1977, made
captain in 2000, demoted back to private in 2001, and was appointed to be an assistant
chief in 2002 by Mayor McGroarty. Appellants’ employment with the city was governed
by a collective bargaining agreement (“CBA”) between the city and Local 104.

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On November 26, 2003, Mayor-elect Thomas Leighton sent a letter to the
appellants informing them that the assistant fire chief position was subject to mayoral
appointment and that the position would be open as of January 5, 2004. The appellants
were welcomed to apply for the open position, and they did so. In early February of
2004, the appellants spoke with Fire Chief Lisman, who had been recently appointed by
Mayor Leighton. Chief Lisman informed appellants that they were not chosen to retain
their positions as assistant chiefs (Appx. 511, 553) and that they could either retire or be
demoted. (Appx. 518, 552.)
On February 11, 2004, Kosciolek filed three grievances. One sought “to find out
why I am being demoted to private without a reason or hearing,” and the other two
addressed questions regarding his pension credits for military service and back pay.
(Appx. 572-75.) On February 13, 2003, Turinski filed three grievances. The first stated:
“I want to know why I am not being given a written notice to retire or be demoted to a
private. I’ve been given a verbal on February 10, 2004 by Chief Lisman. I request a
written notice.” His second grievance stated “I want to know why I am being demoted to
Private from Assistant Chief.” Turinski’s third grievance dealt with calculating back pay
into his pension. (Appx. 535-37.)
On February 19, 2004, Chief Lisman wrote a response to these grievances to Local
104’s president, Thomas Makar, and copied the appellants, stating “As of today,
Thursday, February 19, 2004 at 0900 hours both Thomas Kosciolek and Robert Turinski

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2 Appellants do not pursue their Fourth Amendment claim on appeal and the claim is
therefore waived.
5
are currently Assistant Chiefs in the Wilkes-Barre City Fire Department. Therefore, their
grievances have no merit.” (Appx. 576.)
On February 27, 2004, both Turinski and Kosciolek submitted letters announcing
their retirement as of February 28, 2004. (Appx. 539, 577.) On July 22, 2004, Mayor
Leighton promoted James Clarke and Thomas Makar to the vacant assistant chief
positions.
At the time the District Court granted summary judgment, the claims remaining for
consideration in Turinski’s and Kosciolek’s consolidated complaints included federal law
claims brought pursuant to 42 U.S.C. § 1983 for: (1) violation of the Fourteenth
Amendment because they were forced to retire without due process; (2) violation of the
First Amendment for “political firing;” (3) violation of the First Amendment because they
were retaliated against for free speech which “was a matter of public concern;” and (4)
violation of the Fourth Amendment.2 In addition, the appellants also had two state law
claims, one for breach of duty of fair representation against Local 104, and a second for
breach of the collective bargaining agreement against the City.
The District Court granted judgment in favor of the defendants, holding that the
appellants were not constructively discharged because they chose to retire. The Court
also granted judgment in favor of defendants on the First Amendment claim holding that
Appellants had failed to specify that claim and had waived it by not asserting it at

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summary judgment. The Court then declined to exercise supplemental jurisdiction over
the remaining state law claims.
II. Due Process Claim
“[G]rievance procedures outlined in collective bargaining agreements can satisfy
due process requirements.” Dykes v. SEPTA, 68 F.3d 1564, 1572 (3d Cir. 1995). In
Dykes, we held that even where the appellant alleged that his employer and the union
conspired to deprive him of a fair hearing and of arbitration, the appellant had not
asserted a cognizable violation of due process because he could have pursued his
grievance to arbitration under the CBA and chose not to do so. Id.
Article XVI of the CBA between Wilkes-Barre and Local 104 describes the four-
step grievance procedure which was available to Turinski and Kosciolek. An employee
who feels aggrieved is instructed to: (1) discuss the matter orally with his immediate
supervisor within five days of the occurrence giving rise to the grievance; (2) within five
days of receiving an answer from the immediate supervisor, present his grievance in
writing to the chief of the fire department who is to answer the grievance in writing
within five days; (3) within five days of receiving the letter from the chief, either party
may submit the grievance to the mayor; and (4) if the mayor fails to amicably resolve the
grievance within ten days, either party may submit the matter to arbitration. (Appx. 600.)
Turinski and Kosciolek allege that the fire department, the mayor, and the union
were working in concert to deprive them of their due process rights under the CBA,
which they assert forbids their demotion without just cause. Appellants, however,

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pursued their grievance only to the second step of the four-step process provided to them
by the CBA: Turinski and Kosciolek filed written grievances through the union and they
received a written response from Chief Lisman, their immediate supervisor, on February
19, 2006, denying their grievances concerning their alleged demotion for lack of merit
because they had not been demoted and were still assistant chiefs.
Turinski acknowledged receiving Chief Lisman’s response and admitted that he
did not talk to any union representative or the mayor concerning the letter. (Appx. 518-
19.) He further admitted that he did not ask the union to pursue the grievance. (Appx.
519-20.) Kosciolek similarly stated that he did not talk to anyone from the union after
receiving Chief Lisman’s letter denying his grievance and he never met with Mayor
Leighton regarding the alleged demotion. (Appx. 558, 561-62.)
Even assuming that Turinski and Kosciolek had a property interest in their
assistant chief positions, and assuming they were deprived of that interest when they
“were forced to retire,” they nonetheless failed to exhaust the grievance process available
to them. Neither appellant took his grievance to the mayor, and even if they perceived
this step as futile because they felt the mayor was behind their demotions, neither pursued
the grievance to arbitration despite being entitled to do so under the CBA. Turinski and
Kosciolek are thereby unable to prove a violation of § 1983 for violation of due process.
See Dykes, 68 F.3d at 5172.
III. First Amendment Claim

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Appellants argue on appeal that the District Court improperly granted summary
judgment on their First Amendment claims because it did not address them in its
opinions. Although we agree that the District Court did not properly reject appellants’
First Amendment claims, we will nonetheless affirm its decision because the appellants
failed to provide the facts necessary to survive defendants’ motions for summary
judgment.
The District Court’s only reference to the matter was in a footnote where it said
appellants had not specified how their rights were violated, and in any event, had
abandoned their First Amendment claims by ignoring them at summary judgment. After
a review of the record, we disagree with both assertions.
In Count III of their complaints, appellants alleged they had engaged in protected
speech about the mayor’s political ambitions and as a result, they were retaliated against
by being threatened with demotion or retirement. Appellants’ own summary judgment
motion related only to due process and it was for that reason they did not mention in their
supporting briefs their First Amendment claims. However, appellants filed briefs
opposing the motions of the city, Mayor Leighton, and Chief Lisman for summary
judgment and specifically argued their First Amendment claims. There was no
abandonment.
Although the District Court was wrong in saying that appellants failed to specify
how their First Amendment rights were violated and was wrong when it said the

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appellants ignored those claims at summary judgment, it was right in entering summary
judgment against them.
Summary judgment is required against a party who “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 at trial.” Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). Here, the appellants failed to provide any factual support for the First
Amendment claims they pleaded and failed to properly plead the First Amendment claims
they argued.
In order to have defeated the motion for summary judgment on their Free Speech
claims, appellants had to show their speech was protected and was a substantial or
motivating factor in their alleged demotion. Even assuming appellants’ speech regarding
“Mayor Leighton’s political ambitions of forcing city employees to retire or be demoted”
was protected, they offered no evidence that their speech was a motivating or substantial
factor in the termination of their employment. Instead, appellants simply argue that
because the second prong is a question of fact and not a question of law, summary
judgment is inappropriate and appellants should be entitled to present their case to a jury.
Quite the contrary is true: summary judgment is required where a plaintiff fails to
set forth specific facts supporting his claim. United States v. 717 S. Woodward St., 2 F.3d
529, 533 (3d Cir. 1993) (holding “the nonmoving party may not . . . rest[] on mere
allegations or denials in the pleadings; rather, that party must set forth ‘specific facts
showing that there is a genuine issue for trial,’ else summary judgment, ‘if appropriate,’

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will be entered.”(quoting Fed. R. Civ. P. 56(e))). Appellants’ failure to show any facts
causally linking their speech to their employer’s adverse action is therefore fatal.
Appellants also argue that filing a grievance against the city may qualify as
petitioning the government and note that they filed six grievances. However, appellants
cannot succeed on a Petition Clause argument because they never pleaded that claim. In
Brennan v. Norton, 350 F. 3d 399, 417 (3rd Cir. 2003), we held that where an appellant
asserted a First Amendment claim based on the Speech and Association Clauses, he could
not assert a Petition Clause claim in his brief opposing summary judgment. Just as in
Brennan, the appellants’ complaints here do not reference the Petition Clause, and instead
only assert First Amendment claims under the Free Speech Clause. See also, Hill v.
Kutztown, 455 F.3d 225, 242 (3d Cir. 2006) (noting that although plaintiff’s complaints
might qualify as petitioning and constitute protected activity, he could not assert a petition
claim because he had not alleged the defendant retaliated against him for those
complaints).
Appellants note in their appellate brief that the District Court specifically
mentioned their “First Amendment: Freedom of Association Claim” in its opinion
denying the city’s motion to dismiss their First Amendment claim. There, it appears the
District Court generously construed Count II of the complaints filed against the city,
Mayor Leighton, and Chief Lisman as a political association claim. Count II simply
contained the phrase “Political Firing” in the title and stated that appellants’ positions
were not policy-making positions. However, in order to make out a political association

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claim, a public employee must allege “(1) that the employee works for a public employer
in a position that does not require political affiliation, (2) that the employee maintained a
political affiliation, (3) that the employee’s political affiliation was a substantial or
motivating factor in the adverse employment decision.” Goodman v. Pennsylvania
Turnpike Com’n, 293 F.3d 655, 663-64 (3d Cir. 2002). Appellants did not provide the
District Court with facts showing that they maintained a political affiliation or that their
affiliation was a substantial or motivating factor in their alleged constructive discharge in
either their pleadings or their briefs for summary judgment.
The District Court’s grant of summary judgment for defendants must therefore be
affirmed.
IV. Conclusion
Because we find that the appellants failed to exhaust the due process available to
them and failed to properly plead and support their First Amendment claims, we affirm
the judgment of the District Court.

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