                                                                   NOT PRECEDENTIAL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: Honorable Malachy E. Mannion

                    Submitted pursuant to Third Circuit LAR 34.1(a)
                                   October 27, 2014

                 Before: McKEE, Chief Judge, GREENAWAY, JR., and
                             KRAUSE, Circuit Judges

                            (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 Luzerne Borough and Borough Council members Judy A. Gober, Anthony

Perzia, Mary Ellen Schell, and William Turcan, on the claim she brought pursuant to 42

U.S.C. § 1983, alleging that the Borough and the Council members 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.
employment with the Borough in retaliation for her exercise of her First Amendment

rights. For the reasons that follow, 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, 2013 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 exercise of her First Amendment rights. 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 discussion on this issue. Therefore, we will affirm the grant 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 individual 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. 1996).

Nonetheless, we can affirm on an alternative 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

                                             2
no evidence on this record that the Borough’s actions were in retaliation for Kijek’s

protected First Amendment activity. Accordingly, we will affirm the district court’s grant

of summary judgment to the Borough on this alternate ground.




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