Baloga v. Pittston Area Sch. Dist., 18-1344

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Citation927 F.3d 742
Docket NumberNo. 18-1344,18-1344
Parties Mike BALOGA, Appellant v. PITTSTON AREA SCHOOL DISTRICT; Jim Serino
Decision Date25 June 2019

Cynthia L. Pollick [ARGUED], The Employment Law Firm, 363 Laurel Street, Pittston, PA 18640, Counsel for Plaintiff-Appellant Mike Baloga.

William J. McPartland, Thomas A. Specht [ARGUED], Marshall Dennehey Warner Coleman & Goggin, P.O. Box 3118, Scranton, PA 18505, Counsel for Defendants-Appellees Pittston Area School District and Jim Serino.

Before: KRAUSE, COWEN, and FUENTES, Circuit Judges


KRAUSE, Circuit Judge.

Mike 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, ––– U.S. ––––, 139 S.Ct. 2011, ––––, 204 L.Ed.2d 215, 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.

I. Background
A. Factual Background1

Baloga became a full-time custodian for the District in 1999. Between 2008 and 2016, he worked most of the year at the primary center,2 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.3

In 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 Baloga.

According 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 the union.

In the 20152016 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.

On the 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."4 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.

Later 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.

Although 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.

B. Procedural Background

Baloga 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, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), and that Serino was entitled to qualified immunity because any constitutional right at issue was not "clearly established" at the relevant time.

The District Court denied Baloga’s motion and—reaching only the question whether Baloga’s activity was constitutionally protected—granted the Defendants’.5 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, 103 S.Ct. 1684, 75 L.Ed.2d 708 (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 followed.

II. Jurisdiction and Applicable Standards

The 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...

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