Failure To Exhaust Grievance Procedure Bars Due Process Claims From Fire Chiefs

Robert Turinski and Thomas Kosciolek were assistant fire chiefs with the Wilkes-Barre, Pennsylvania Fire Department. When a new mayor appointed a new Fire Chief, Turinski and Kosciolek were told that they would not be retained as assistant fire chiefs and that they could either retire or be demoted.

Both Turinski and Kosciolek elected to retire. Turinski and Kosciolek then filed a lawsuit against both the City and Local 104 of the International Association of Fire Fighters, contending among other things that they were forced to retire in violation of their due process rights.

A federal Court of Appeals rejected the due process claim. The Court found that there was a grievance procedure in Local 104’s collective bargaining agreement that allowed Turinski and Kosciolek to challenge the City’s decision to remove them from the position of assistant chief. The failure to exhaust that grievance procedure, the Court concluded, precluded the two from later bringing a due process claim.

Turinski and Kosciolek alleged that the Department, the mayor, and Local 104 were working in concert to deprive them of their due process rights under the contract. However, the Court noted, neither pursued a grievance through all of the steps in the grievance procedure between Local 104 and the City: “Even assuming Turinski and Kosciolek had a property interest in their assistant chief positions, and assuming they were deprived of that interest when they were forced to retire, they nonetheless failed to exhaust the grievance procedure available to them. Neither took his grievance to the mayor, and even if they perceived this step as futile because they felt the mayor was behind their demotions, neither pursued the grievance to arbitration despite being entitled to do so under the contract. Turinski and Kosciolek are thereby unable to prove a violation of their due process rights.”

Turinski v. Local 104, International Association of Fire Fighters, 2008 WL 681691 (3rd Cir. 2008).

This article appears in the June 2008 issue