Thomas Belles v. Wilkes Barre Area School Dist

                                                             NOT PRECEDENTIAL


                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT

                                    __________

                                    No. 20-1567
                                    __________

                                 THOMAS BELLES,
                                            Appellant

                                        v.

                 WILKES-BARRE AREA SCHOOL DISTRICT;
                     FRANK CASTANO; SEAN FLYNN

                                    __________

                  On Appeal from the United States District Court
                      for the Middle District of Pennsylvania
                     (District Court Civil No. 3-17-cv-01016)
                  District Judge: Honorable Karoline Mehalchick

                            Argued: October 22, 2020

    BEFORE: CHAGARES, GREENAWAY, JR., and NYGAARD, Circuit Judges

                             (Filed: January 26, 2021)



Kimberly D. Borland (ARGUED)
Borland & Borland
69 Public Square, 11th Floor
Wilkes-Barre, PA 18701
      Counsel for Appellant

John E. Freund, III
Brian J. Taylor (ARGUED)
King Spry Herman Freund & Faul
One West Broad Street, Suite 700
Bethlehem, PA 18018
      Counsel for Appellees

                                       __________

                                        OPINION*
                                       __________




NYGAARD, Circuit Judge.

       Thomas Belles sued Wilkes Barre Area School District, Frank Castano and Sean

Flynn claiming that they violated the Americans with Disabilities Act (42 U.S.C. §§

12101–12213) and the Pennsylvania Human Relations Act (43 Pa. Cons. Stat. §§ 951-

963) during the time that he served as head varsity wrestling coach at Coughlin High

School.1 Belles appeals only the judgment granted in favor of the School District and

Castano, who is the District’s Director of Human Resources.2 We will affirm the District

Court’s order.3

       Belles is quadriplegic. He has taught in the School District since 1993 and had

been head coach of the junior high school wrestling team from 2008. The School District

hired him as the high school’s head varsity wrestling coach on May 12, 2014. Belles




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
  The analysis of Belles’s ADA claims here applies equally to his PHRA claims. See
Macfarlan v. Ivy Hill SNF, LLC, 675 F.3d 266, 274 (3d Cir. 2012).
2
  Belles voluntarily withdrew all claims against Sean Flynn in the District Court.
3
  We have jurisdiction under 28 U.S.C. § 1291. Our review is plenary.
                                             2
resigned from the position on August 28, 2014. Within that span of time, he claims the

School District and Castano discriminated against him by failing to accommodate his

ability to practice his team; retaliating for his accommodation request when the School

District hired an associate head coach; creating a hostile work environment; and

constructively discharging him.

       To establish an ADA failure-to-accommodate claim, Belles had to show he is

disabled, his employer was aware of it, he requested accommodation, a reasonable

accommodation was possible, and the employer did not make a good faith effort to

respond. See Capps v. Mondelez Global, LLC, 847 F.3d 144, 157 (3d Cir. 2017). The

first three elements are not at issue here.

       The accommodation issue arose because the wrestling team’s practice room is in

the high school basement. Belles suggested that the School District could install a

wheelchair lift, or it could move practices to an accessible space like the junior high

school wrestling practice area, the high school gym or the high school cafeteria. Belles

stressed to the District Court that over one-hundred days passed before the School

District made any effort to respond. He also averred that the School District expressed

opposition to accommodating him. However, he quit just hours before he was to attend a

meeting with the School District and a wheelchair lift contractor. The District Court

ruled that Belles’s failure to accommodate claim was “bereft of any evidentiary support”

and that permitting this claim to go to trial would “sanction jury speculation.” Belles v.

Wilkes-Barre Area School District, 2020 WL 1028338, at *8 (M.D. Pa. 2020).



                                              3
       Belles argues that the District Court misapplied the standard of review by

interpreting the record in favor of Appellees. He also contends it either failed to discuss

or downplayed evidence that the School District acted in bad faith. Superintendent

Bernard Prevuznak angrily declared, Belles avers, that practices would remain in the

basement room, and that the Board did not want to pay for a wheelchair lift. Prevuznak

disputes this. But, regardless, the rest of Belles’s bad faith argument rests purely on

speculation (e.g., his claim that Castano asked him to quit to avoid accommodating him;

or his assertion that delay made it difficult to install a lift before wrestling season), and

other information that is not material to the claim (e.g., his focus on the negative

comments and acts by Robert Hawkins, a parent and volunteer assistant coach).

Therefore, even when interpreted in Belles’s favor, the remarks by Prevuznak are not

sufficient to reasonably infer bad faith. Accordingly, they do not raise a question of

material fact. Moreover, as the District Court noted, Belles’s resignation foreclosed the

process with the School District to find an accommodation, and the brevity of his tenure

limited the amount of interaction that was reasonably possible between him and the

School District. Both undercut his already inadequate claim that its interactive process

with him was made in bad faith. The District Court did not err.

       Belles next claims the School District generally discriminated against him,4 and

that he was demoted in retaliation for requesting accommodation when, on August 11,




4
 Belles refers to his failure-to-accommodate and constructive discharge claims in this
context.
                                               4
2014, the Board hired David Parsnik to be an associate coach.5 He adds that it appointed

two assistant coaches he did not recommend.

       To show a prima facie case of ADA discrimination or retaliation, Belles must

provide evidence of “(1) protected employee activity; (2) adverse action by the employer

either after or contemporaneous with the employee’s protected activity; and (3) a causal

connection between the employee’s protected activity and the employer’s adverse

action.” Krouse v. American Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997). The

record does not provide any evidence of an adverse employment action.6

       There is no evidence that the Board’s staffing decisions on August 11 constitute an

adverse employment action. Belles calls it a demotion, but the record is devoid of any

evidence setting out Parsnik’s responsibilities. This makes it impossible to assess the

impact of the appointment, if any, on Belles’s head coach position. The label given to the

position, whether “associate” or “co-head coach” (as Belles states) means nothing

without more. Similarly, Belles fails to provide any evidence that sheds light on the

significance of the Board appointing assistant coaches that he did not recommend. No

one disputes that the School Board was vested with the authority to staff those positions.

Moreover, Belles resigned before any of the new appointees engaged with him in a

coaching capacity. We do not have any facts to assess his claim of being demoted.




5
  We are addressing the ADA and PHRA retaliation claims with the same analysis here.
Compare 42 U.S.C. § 12203(a) and 43 Pa. Cons. Stat. § 955(d).
6
  We assess the failure-to-accommodate and constructive discharge claims more
specifically in other portions of this opinion.
                                             5
Lacking evidence of an adverse employment action, Belles has not established a prima

facie case of discrimination or retaliation. Summary judgment was proper.

       Next, Belles claims that he was subjected to a hostile work environment. He

points to all of the conduct and events already referenced above plus some additional

emails from Castano and Hawkins, and other communications that he characterizes as

hostile. After our review, we conclude that Belles does not provide evidence that the

School District engaged in any conduct that would rise to the level of harassment. Belles

says that Castano asked him to quit, but there is no evidence that he did. The exchange

between Castano and Belles the day after the Board hired him centered on some negative

responses to his appointment as head coach. And both agree they discussed alternative

job responsibilities Belles could possibly take. But even crediting Belles’s view of the

conversation, Belles’s other allegations of harassment do not create a material issue

because the alleged harassment was neither severe nor pervasive. As for the messages

Castano sent to Belles during the summer of 2014, he did not demand that Belles resign.

Belles is the one who expressed his intent to resign. Belles resorts, in briefing, to mere

speculation about Castano’s motive and what he meant in each of these communications.7

Similarly, the remarks by Prevuznak (referenced and discussed above) do not create a

genuine dispute on the claim of harassment. As to the actions of the Board on August 11,



7
  In the same way, as to Belles’s averments about statements made by the Junior High
School principal, there is no evidence the principal asked Belles to resign. But even if the
principal asked Belles to resign, Belles’s own testimony makes clear that the principal
only asked for his resignation letter after Belles informed Castano that he wanted to
resign. Moreover, none of this rises to the level of severe and pervasive.
                                             6
our assessment above also applies here. We do not have enough information to

understand its relevance to any of Belles’s claims. Finally, Belles refers to efforts by

Hawkins to organize parents and students to oppose his appointment. Although Hawkins

was appointed as a volunteer coach, this appointment and the actions by Hawkins that

Belles avers do not rise to the level of harassment required because a “hostile”

environment requires more than mere disagreements or even the “sporadic use of abusive

language,” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)(citation omitted),

and any suggestion that Hawkins would have harassed Belles throughout the wrestling

season is entirely speculative. He also points to some negative comments made

throughout his brief tenure by students and parents. But even if, arguendo, these

communications rose to the level of severe and pervasive, none of them are attributable to

the School District. The District Court did not err.

       Finally, Belles alleges he was constructively discharged. We consider a number of

factors, including whether the employer threatened to fire, demote or reduce the

compensation of the employee, and whether it transferred him to a less desirable position,

had his job responsibilities altered, or gave him unsatisfactory evaluations. Colwell v.

Rite Aid Corp., 602 F.3d 495, 503 (3d Cir. 2010). Although, as discussed above, Belles

alleges a number of these—termination, demotion, and altering responsibilities—the

analysis is objective. Since we have not found any such evidence to support any of the




                                             7
assertions relevant to this claim, we conclude that the District Court did not err by

granting summary judgment in favor of Appellees.8

       For all of these reasons we will affirm the order of the District Court.




8
 Lacking any ADA or PHRA claims to place before a jury, Belles’ claim that Castano
aided and abetted the School District’s violations also fails.
                                              8