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Kosciolek v. Wilkes-Barre Fire Fighters Association Local 104

December 18, 2006


The opinion of the court was delivered by: Judge Caputo


Presently before the Court are cross-motions for summary judgment filed by Plaintiff Thomas E. Kosciolek ("Plaintiff") and Defendants City of Wilkes-Barre (the "City"), Thomas M. Leighton ("Mayor Leighton"), Jacob Lisman ("Chief Lisman") (collectively "City Defendants"), and Wilkes-Barre Fire Fighters Local 104, International Association of Fire Fighters, AFL-CIO ("Local 104") (collectively "Defendants"). (Docs. 61, 64, 71 and 76.) For the reasons stated below, Plaintiff's motions will be denied. Defendants' motions will be granted as to Count I of Plaintiff's Amended Complaint. The Court has jurisdiction over Count I of Plaintiff's Amended Complaint pursuant to 28 U.S.C. § 1331. The Court will decline to exercise its supplemental jurisdiction, pursuant to 28 U.S.C. § 1367, over Counts II and III of Plaintiff's Amended Complaint, and will dismiss these claims without prejudice.


I. Factual Background

While the Court is presented with cross-motions for summary judgment, because the Court will grant summary judgment in Defendants' favor, the Court will accept Plaintiff's version of the facts and view them in the light most favorable to him.

Plaintiff was hired as a firefighter by the City in 1977. (Kosciolek Dep. 9:21, Aug. 17, 2006, Doc. 70.) Ninety (90) days after his hiring, Plaintiff became a member of Local 104, the union that represents the City firefighters. (Kosciolek Dep. 73:23-25.) Plaintiff was employed at the rank of private from 1977 until 2000. (Kosciolek Dep. 11:11.) In 2000, after having sought a promotion on multiple occasions, Plaintiff was elevated to the rank of Captain. (Kosciolek Dep. 14:19-17:17.) However, in 2001, Plaintiff was demoted back to private after Local 104 filed a grievance over his promotion. (Kosciolek Dep. 21:9-22:1.) Then, in 2002, Plaintiff was appointed to the rank of Assistant Fire Chief by Thomas McGroarty, then the Mayor of the City. (Kosciolek Dep. 17:25; 25:25-26:2.)

In 2003, the office of Mayor of the City was up for election. (See Kosciolek Dep. 31:23-25; 32:17-20.) The incumbent Mayor McGroarty was challenged by Thomas M. Leighton, the current Mayor of the City. (See Kosciolek Dep. 31:23-25; 32:17-33:5.) Prior to the Spring Primary, Plaintiff heard rumors floating around the firehouses that, if Leighton were elected Mayor, the Fire Chief and Assistant Fire Chiefs "were going to be demoted and thrown out." (Kosciolek Dep. 33:3.) Hence, despite Mayor McGroarty's appointment of Plaintiff to Assistant Fire Chief, as well as the allegiance Plaintiff felt toward McGroarty because of this, Plaintiff purchased tickets for and attended a Leighton campaign function to show that, if Leighton were elected Mayor, Plaintiff would support him. (Kosciolek Dep. 32:4-16; 34:6-12.) Leighton beat McGroarty in the primary and then won the general election. (See Kosciolek Dep. 35:2-14.)

On November 26, 2003, Plaintiff and other Assistant Fire Chiefs received a letter from then Mayor-Elect Leighton. (Kosciolek Dep. 41:17-18.) In the letter, Leighton informed Plaintiff and the other Assistant Fire Chiefs that their positions were subject to appointment by the Mayor. (Letter from Thomas M. Leighton, Mayor, City of WilkesBarre, to Thomas E. Kosciolek, dated November 26, 2003, Doc. 78-9, "Leighton Letter".) As such, Leighton stated that he was opening their positions to other candidates. (Id.) Leighton did, however, invite Plaintiff and the other Assistant Fire Chiefs to apply for their positions. (Id.)

Plaintiff accepted Leighton's invitation to apply for the position of Assistant Fire Chief. (Kosciolek Dep. 41:24-42:1; 44:7-8.) Plaintiff submitted a resume (Kosciolek Dep. 44:14-20) and was interviewed in January of 2004. (Kosciolek Dep. 44:25-47:15.) During the interview process, Plaintiff continued to act as and was paid as an Assistant Fire Chief. (Kosciolek Dep. 45:18-22.)

Then, in February of 2004, Chief Lisman called Plaintiff into his office (Kosciolek Dep. 48:24-25) and told him that he had "some bad news for you. You weren't picked by the [mayoral] transition team. So you're either going to be demoted or retire." (Kosciolek Dep. 49:2-4.) Chief Lisman even offered to type up a retirement letter for Plaintiff. (Kosciolek Dep. 110:2-4.)

On February 11, 2004, Plaintiff filed a grievance with his Local 104 union representative, Michael Bilski, demanding to know why he was "being demoted to private without a reason or a hearing." (Kosciolek Dep. 54:15-18; 81:25.) Plaintiff also filed a second grievance based upon the calculation of his pension. (Kosciolek Dep. 55:7-12.)

On February 19, 2004, Chief Lisman responded to Plaintiff's grievance pertaining to his impending demotion, rejecting it because, as of that date, Plaintiff was still an Assistant Fire Chief. (Letter from Jacob Lisman, Fire Chief, City of Wilkes-Barre, to Thomas Makar, President of Local 104, dated February 19, 2004, Doc. 78-11, "Lisman Letter".) Plaintiff, however, argues that his grievance was not fully pursued by Local 104 because Thomas Makar, President of Local 104, was interested in becoming Assistant Fire Chief, and knew that positions would become available due to Plaintiff and others being forced to retire. (Kosciolek Dep. 69:10-70:16.) In fact, Makar was appointed Assistant Fire Chief by Mayor Leighton after Plaintiff was forced to retire. (Kosciolek Dep. 63:13.)

Plaintiff served as an Assistant Fire Chief until February 28, 2004, the effective date of his retirement. (Kosciolek Dep. 61:16-23; Letter from Thomas E. Kosciolek to Christine Jensen, Human Resource Director, City of Wilkes-Barre, dated February 27, 2004, Doc. 78-12, "Retirement Letter".) Up until Plaintiff's retirement, Plaintiff acted as and was paid as an Assistant Fire Chief. (Kosciolek Dep. 62:10-18.) Plaintiff chose to retire because his pension, which is calculated based upon his salary, would have been reduced had he been demoted to private. (Kosciolek Dep. 56:22-24; 78:18-80:2.) Plaintiff also retired, in part, to avoid the humiliation he would feel if he were relegated to the position of private. (Kosciolek Dep. 80:5-8.)

Plaintiff's employment as an Assistant Fire Chief was governed by the Collective Bargaining Agreement ("CBA") between Local 104 and the City. (Doc. 78-13.) Plaintiff avers that, under the CBA, he can only be fired or demoted for ...

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