2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-11-2015

Gloria Kijek v. Judy Gober

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Recommended Citation

"Gloria Kijek v. Judy Gober" (2015). 2015 Decisions. Paper 169.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 13-4512

GLORIA KIJEK,

 Appellant

v.

JUDY A. GOBER; ANTHONY PERZIA; 

MARY ELLEN SCHELL; WILLIAM TURCAN; LUZERNE BOROUGH 

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 3-11-cv-01642)

District Judge: Honorable Malachy E. Mannion

Submitted pursuant to Third Circuit LAR 34.1(a)

October 27, 2014

Before: McKEE, Chief Judge, GREENAWAY, JR., and

KRAUSE, Circuit Judges

(Opinion filed: February 11, 2015)

OPINION*

McKEE, Chief Judge.

Gloria Kijek has filed an appeal from the district court’s grant of summary 

judgment to Luzerne Borough and Borough Council members Judy A. Gober, Anthony 

Perzia, Mary Ellen Schell, and William Turcan, on the claim she brought pursuant to 42 

U.S.C. § 1983, alleging that the Borough and the Council members terminated her 

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
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employment with the Borough in retaliation for her exercise of her First Amendment

rights. For the reasons that follow, we will affirm.

I.

The district court granted summary judgment to the Borough and the named 

Council members because it found that they were entitled to absolute legislative 

immunity from Kijek’s First Amendment retaliation claim. Kijek v. Gorber, 2013 WL 

5969923 (M.D. Pa. Nov. 8, 2013). In its opinion, the district court carefully and fully 

explained that Kijek was terminated because of budgetary reasons and not for her 

claimed exercise of her First Amendment rights. Accordingly, the district court found 

that the Council members were entitled to absolute legislative immunity from Kijek’s 

First Amendment retaliation claims. Id. at *3-4. We can add little to the district court’s 

analysis and discussion on this issue. Therefore, we will affirm the grant of summary 

judgment to the Borough Council members substantially for the reasons set forth in the 

district court’s opinion.

As noted, the district court also granted summary judgment to the Borough based

upon its conclusion that, because the individual Council members are immune from suit, 

the Borough cannot be liable. Id. at *4. However, legislative immunity is generally not 

applicable to a municipality. See Carver v. Foerster, 102 F.3d 96, 101 (3d Cir. 1996). 

Nonetheless, we can affirm on an alternative basis supported by the record. See Erie 

Telecommunications, Inc. v. City of Erie, Pennsylvania, 853 F.2d 1084, 1089 n. 10 (3d 

Cir. 1988). It is clear, based on the record, that the Borough terminated Kijek for the 

same reasons that the Council members did, i.e., because of budgetary reasons. There is 
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no evidence on this record that the Borough’s actions were in retaliation for Kijek’s 

protected First Amendment activity. Accordingly, we will affirm the district court’s grant 

of summary judgment to the Borough on this alternate ground.