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### NOT PRECEDENTIAL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: Hon orable Malachy E. Mannion Submitted pursuant to Third Circuit LAR 34.1(a)

October 27, 2014 Before: McKEE, Chief Judge , GREENAWAY, JR., and

KRAUSE, Circuit Judg es (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 Luzer ne Borough and Borough Council members Judy A. Gober, Anthony Perzia, Mary Ellen Schell, a nd William Turcan, on the claim she brought pursuant to 42 U.S.C. § 1983, alleging th at the Borough and the Council m e mbers 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 foll ow, 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 , 201 3 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 e xercise of her First Amendment r ights. 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 discuss ion on this issue. Therefore , we will affirm the gr ant 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 individua l 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. 1 996). Nonetheless, we can affirm on an alt ernative 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 prote cted First Amendment activity. Accordingly, we will affirm the district court’s grant of summary judgment to the Borough on this alternate ground

.