Argued: October 23, 2018
Appeal from the United States District Court for the Middle
District of Pennsylvania (M.D. Pa. No. 3-16-cv-01039)
Honorable Richard P. Conaboy, U.S. District Judge.
Cynthia L. Pollick [ARGUED] The Employment Law Firm Counsel
for Plaintiff-Appellant Mike Baloga
William J. McPartland Thomas A. Specht [ARGUED] Marshall
Dennehey Warner Coleman & Goggin Counsel for
Defendants-Appellees Pittston Area School District and Jim
Before: KRAUSE, COWEN, and FUENTES, Circuit Judges
KRAUSE, Circuit Judge.
Baloga, a custodian for the Pittston Area School District and
vice president of the custodial union, alleges that the
District and its maintenance director, Jim Serino, violated
his First Amendment rights by retaliating against him based
on his union association and related speech. Treating
Baloga's speech and association claims together, the
District Court granted summary judgment in favor of the
District and Serino, concluding that Baloga's activity
was not constitutionally protected because it did not
implicate a matter of public concern. As we recently
emphasized in Palardy v. Township of
Millburn, however, where a public employee asserts
retaliation in violation of the First Amendment as a free
speech claim and a pure union association claim, those claims
must be analyzed separately, and consistent with longstanding
Supreme Court precedent, there is no need to make a separate
showing of public concern for a pure union association claim
because membership in a public union is "always a matter
of public concern." 906 F.3d 76, 80-81, 83 (3d Cir.
2018), cert. denied, No. 18-830, ___ S.Ct. ___, 2019
WL 2078114, at *1 (May 13, 2019). Because Baloga has raised a
triable issue about whether he was retaliated against based
solely on his union association, we will affirm in part,
reverse in part, and remand for further proceedings.
became a full-time custodian for the District in 1999.
Between 2008 and 2016, he worked most of the year at the
primary center,  where his duties related to field
maintenance and outdoor work. Given the seasonal nature of
that work, however, the District would transfer Baloga to the
high school each year from December through late February or
March of the following year, with the specific rotation dates
depending on the District's needs.
addition to these job responsibilities, Baloga began serving
as the vice president of the custodial union in 2010. In this
role, he was regularly approached by fellow custodians about
problems they were having with the District, and Baloga made
efforts to solve them internally, often acting as the
union's "mouthpiece" in relaying concerns to
the District. JA 63. However, the decision whether to
escalate an issue to an official grievance was decided by
Thomas Rome, the union president, in consultation with
to Baloga and Rome, the relationship between the union and
the District-and, in particular, its maintenance director,
Jim Serino-was strained. Over the years, Baloga testified,
Serino repeatedly threatened that the school board would
eliminate union members' days off if the union continued
to file grievances. And according to Rome, "[t]here was
never a good atmosphere" between the union and Serino,
and it appeared that Serino did not "ha[ve] respect for
the bargaining unit." JA 64. Rome also testified that he
thought Serino "wanted [Baloga] out of the mix"
because Baloga, "being [at the high school] . . ., being
pro union, [and] being pro contract," might
"interfere" with Serino's directives. JA 64.
School board members and others employed by the District
likewise perceived Serino to have a negative attitude toward
2015-2016 school year, Baloga rotated from the primary center
to the high school in early January, a little later than
usual. Within a couple of weeks, Baloga learned that the
District intended to require custodians to work on Martin
Luther King Jr. Day even though they had received that day as
a holiday for the past twenty-six years. Teachers and
students continued to have the day off. On January 15, 2016,
after consulting with Baloga, Rome filed a grievance on
behalf of the union, challenging the District's decision
as a violation of a past practice. The same day, Baloga sent
a text message to Serino, and the following exchange ensued:
Baloga: I have plans on Monday. Why are they making us work.
We never worked a [Martin Luther King Jr.] day ever. In my 26
years. Do I have to take a day off?
Serino: Unfortunately there is [sic] multiple events and lots
of work that needs to be completed. A day will have to be
used if you are not present.
Baloga: You can't do anything as boss. You['re] the
director. You have a lot of influence. Why can't you talk
to [superintendent] Kevin [Booth].
Serino: Already did.
Baloga: In the past [former maintenance director] Clarence
always got us the day off. It really hurts us with families.
JA 25. Shortly after the union filed the grievance, Baloga
also exchanged words with his direct supervisor, Ken Bangs,
who told him that "because you filed a grievance on
Martin Luther . . . King Day, the board now says you have to
work full days on snow days." JA 212.
following Friday, January 22, 2016, Baloga and Serino spoke
in person about the grievance. According to Baloga, Serino
was "very, very angry," accused him of
"complaining," and said that if Baloga was
"not happy [at the high school]," Serino
"could transfer [him] today." JA 215. Baloga
demurred, telling Serino that he was happy in his position
but that "people are coming to me as the vice president
[of the union] wondering why they're getting a day taken
off them," JA 40, to which Serino responded: "You
should have never filed that grievance until you talked to
me," JA 36.
that day, less than three weeks into Baloga's rotation,
Bangs notified him that he was being transferred back to the
primary center, effective the next business day-that is, more
than a month before his usual transfer date. Serino did not
explain the transfer decision to Baloga, but he asserted in
subsequent deposition testimony that there were two reasons:
(1) Baloga's colleagues said he was "bringing the
morale" of the group down by "whining," JA
102; and (2) the District had hired new employees, so
Baloga's continued assistance at the high school was no
longer necessary. Notwithstanding the District's prior
practice of annual rotations, Baloga has not been assigned to
work at the high school again since the transfer.
the early (and, effectively, permanent) transfer did not
change his pay or benefits, Baloga testified that it
negatively affected him in other ways. For example, he could
no longer go home during lunchtime to help his wife, who
homeschools their eight children, because the primary center
is twice as far as the high school from his home. He also
could no longer work the 6:00 a.m. to 2:00 p.m. shift-a
benefit only available to workers at the high school-which
had allowed him to go home early at least once a month.
Finally, he described the transfer as effectively a demotion
in job responsibilities, with attendant reputational and
emotional costs, as his tasks at the primary center during
the winter months were menial relative to those at the high
school, reducing him to "a mop and a broom." JA 38.
Fearful of further retribution, however, Baloga did not file
a grievance to contest his transfer.
eventually filed the underlying complaint in this action,
asserting two First Amendment retaliation claims against the
District and Serino (the "Defendants")-one for a
violation of his freedom of speech and one for a violation of
his right to associate with the union. The parties then filed
cross-motions for summary judgment, with the Defendants
arguing that Baloga's activity was not constitutionally
protected, but that, even if it were, he failed to establish
the other elements of a retaliation claim. Defendants further
argued that there was no municipal policy or custom as
required to support liability against the District under
Monell v. Department of Social Services of City of New
York, 436 U.S. 658, 690 (1978), and that Serino was
entitled to qualified immunity because any constitutional
right at issue was not "clearly established" at the
District Court denied Baloga's motion and- reaching only
the question whether Baloga's activity was
constitutionally protected-granted the
Defendants'. Although the Defendants sought summary
judgment on both Baloga's speech and association claims,
the District Court explicitly discussed only Baloga's
speech, concluding that it was not constitutionally protected
because it did not address a matter of public concern under
Connick v. Myers, 461 U.S. 138 (1983). Rather, the
Court reasoned, his speech implicated only "his personal
preference to have a paid holiday" and, at most, a
concern for employee morale. JA 12. Even if Baloga's
speech did touch on a matter of public concern, the Court
continued, Baloga's "interest in speaking out"
was subordinate to the interest of the District in assigning
its personnel in a manner that "promotes harmony in the
workplace and efficient performance of its mission." JA
15. Without separately analyzing Baloga's association
claim, the District Court then granted summary judgment to
the Defendants on both counts of the complaint. This appeal
Jurisdiction and Applicable Standards
District Court had jurisdiction under 28 U.S.C. § 1331,
and we have jurisdiction pursuant to 28 U.S.C. § 1291.
We review a district court's grant or denial of summary
judgment de novo, see EEOC v. Allstate Ins. Co., 778
F.3d 444, 448 (3d Cir. 2015), and may affirm on any basis
supported by the record, Gorum v. Sessoms, 561 F.3d
179, 184 (3d Cir. 2009). Summary judgment is appropriate only
where "there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law." Fed.R.Civ.P. 56(a). A dispute is
"genuine" if "a reasonable jury could return a
verdict for the nonmoving party," Santini v.
Fuentes, 795 F.3d 410, 416 (3d Cir. 2015) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)), and a fact is "material" where "its
existence or nonexistence might impact the outcome of the
suit under the applicable substantive law," id.
(citing Anderson, 477 U.S. at 248). At the summary
judgment stage, our role is "not . . . to weigh the
evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial,"
Anderson, 477 U.S. at 249, and like the District
Court, we must review the facts in the light most favorable
to the non-moving party, see Hugh v. Butler Cty. Family
YMCA, 418 F.3d 265, 267 (3d Cir. 2005).