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Turinski 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 Robert Turinski ("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. 72, 75, 80 and 85.) For the reasons stated below, Plaintiff's motions will be denied. Defendants' motions will be granted as to Count I of Plaintiff's Second Amended Complaint. The Court has jurisdiction over Count I of Plaintiff's Second 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 Second 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 1975. (Turinski Dep. 10:21, Aug. 17, 2006, Doc. 79-2.) Ninety (90) days after his hiring, Plaintiff became a member of Local 104, the union that represents the City firefighters. (Turinski Dep. 13:12-22.) Plaintiff was employed at the rank of private from 1975 until 2000. (Turinski Dep. 11:24-25; 17:15-22.) In 2000, Plaintiff was appointed an Assistant Fire Chief by Mayor Thomas McGroarty. (Turinski Dep. 42:1-2.)

In 2003, the office of Mayor of the City was up for election. (Turinski Dep. 45:22-24.) The incumbent Mayor McGroarty faced off against Thomas M. Leighton, now the Mayor of the City. (See Turinski Dep. 46:9-11.) At first, during the primary election season, which occurred in the Spring of 2003, Plaintiff placed his allegiance with the incumbent McGroarty, with whom Plaintiff was "good friends." (Turinski Dep. 49:6-8; 54:20.) Plaintiff contributed financial support and attended McGroarty's campaign social functions. (Turinski Dep. 49:20-50:12.) Plaintiff also supported McGroarty more vocally, asking people to vote for McGroarty and attending rallies. (Turinski Dep. 54:17-55:7.)

However, Plaintiff began to hear rumors that, if Leighton were elected Mayor, there would be a "shake-up in the fire department." (Turinski Dep. 47:12-14.) In particular, Plaintiff heard that Leighton would appoint Jacob Lisman as Fire Chief, and that there would be changes made among the ranks of the Assistant Chiefs. (Turinski Dep. 58:7.) Plaintiff began to fear for his job. (Turinski Dep. 50:17.) Consequently, Plaintiff decided to switch his support from McGroarty to Leighton. (Turinski Dep. 50:13-17.) Plaintiff contributed money, attended campaign functions conducted on Leighton's behalf, and placed signs in his yard. (Turinski Dep. 51:8-15; 75:21.) Leighton beat McGroarty in the primary and then won the general election. (See Turinski Dep. 72:20-23; Local 104's Statement of Material Facts ¶ 10, Doc. 82.)

Thereafter, on November 26, 2003, Plaintiff and other Assistant Fire Chiefs received a letter from then Mayor-Elect Leighton. (Turinski Dep. 72:16-25.) 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 Wilkes-Barre, to Robert S. Turinski, dated November 26, 2003, Doc. 95-4, "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 an Assistant Fire Chief position. (Turinski Dep. 73:5.) Plaintiff submitted a resume and was interviewed by the Mayor's transition team. (Turinski Dep. 77:3-8.) One of the persons who interviewed Plaintiff was Jacob Lisman, who, as rumored, was appointed Fire Chief by Mayor Leighton. (Turinski Dep. 84:25-85:3.) During the interview process, Plaintiff continued to act as and was paid as an Assistant Fire Chief. (Turinski Dep. 85:6-85:11.)

Then, on the afternoon of February 10, 2004, Chief Lisman called Plaintiff into his office and informed him that Mayor Leighton would not be selecting him to serve as an Assistant Fire Chief in his administration. (Turinski Dep. 86:12-16.) Plaintiff asked Lisman why he would not be selected, and Lisman responded that he had nothing to do with the decision. (Turinski Dep. 93:19-20.) Chief Lisman told Plaintiff that he had two choices -- "retire or get demoted to private." (Turinski Dep. 85:16-17.) Chief Lisman even offered to type up a letter of resignation for Plaintiff to sign, which Plaintiff refused to do, telling Lisman that he did not want to retire. (Turinski Dep. 89:9-13.)

Afterwards, on February 11, 2004, or February 12, 2004, Plaintiff called two councilmembers for the City, Phil Latinski and Shirley Vitanovec, in an effort to save his job as an Assistant Fire Chief. (Turinski Dep. 92:10; 96:14.) Both Latinski and Vitanovec informed Plaintiff that Mayor Leighton had told them that "it was the transition team" that did not select Plaintiff. (Turinski Dep. 94:11-12; 96:25-97:1.)

Plaintiff then spoke with Tim Evans, a member of the Mayor's transition team, who told Plaintiff that he "thought [Plaintiff] did good and that [he] [was] going to be selected for assistant chief." (Turinski Dep. 96:4-6.) As such, Plaintiff believes that his being forced to retire was the doing of Mayor Leighton.

On February 13, 2004, Plaintiff went to his Local 104 union representative, Thomas Makar, who also was president of the union (Turinski Dep. 110:4), and filed three grievances (Turinski Dep. 90:4-15). Plaintiff's first grievance was based upon his being demoted from Assistant Fire Chief to private. (Turinski Dep. 90:10-11.) Second, Plaintiff grieved that he was not provided with any documentation verifying his demotion. (Turinski Dep. 90:11-13.) Third, Plaintiff complained that his back pay had not been included in determining his pension. (Turinski Dep. 90:13-15.) This third grievance, Plaintiff concedes, had nothing to do with his allegedly being forced to retire or accept a demotion from the position of Assistant Fire Chief. (Turinski Dep. 143:2-3.) Makar told Plaintiff that, if Plaintiff did not retire and was demoted to private, he would lose a lot of money from his pension, which is calculated based upon a firefighter's final salary. (Turinski Dep. 90:16-21; 122:11-123:8; 129:25-130:2.)

Afterwards, Plaintiff again spoke with Chief Lisman, who asked Plaintiff whether he had made a decision yet. (Turinski Dep. 97:12-13.) Plaintiff responded that he did not have an answer yet. (Turinski Dep. 97:14-15.) Lisman then told Plaintiff that he would have a job "down at South Station on Engine 5 either as a driver or a hoseman." (Turinski Dep. 97:18-20.) However, Plaintiff testified that Lisman specifically informed him that Plaintiff was not demoted yet. (Turinski Dep. 97:22-25.)

On February 19, 2004, Chief Lisman responded to Plaintiff's grievances pertaining to his impending demotion, rejecting them because, as of that date, Plaintiff was still an Assistant Fire Chief. (Turinski Dep. 98:1-10; 116:11-17; see Letter from Jacob Lisman, Fire Chief, City of Wilkes-Barre, to Thomas Makar, President Local 104, dated February 19, 2004, Doc. 87-12, "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 an Assistant Fire Chief, and knew that positions would become available due to Plaintiff and others being forced to retire. (Turinski Dep. 144:12-145:21.) Makar, in fact, was appointed Assistant Fire Chief by Mayor Leighton after Plaintiff was forced to retire. (Turinski Dep. 118:19-119:13.)

Plaintiff also tried to contact Mayor Leighton, but, despite his frequent phone calls, Plaintiff could not get through to speak with Leighton and Leighton did not return Plaintiff's calls until ...

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