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February 5, 2021 | ISSUE #3
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JUDICIAL & ADMINISTRATIVE DECISIONS
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Thomas Belles v. Wilkes-Barre Area School District, et al, 2021 WL 246142 (3d Cir. 2021)
The Third Circuit affirmed the decision of the District Court that granted summary judgment in favor of Wilkes-Barre Area School District (Wilkes-Barre) and the other defendants in this employment discrimination case. Belles, who is quadriplegic, was the head wrestling coach. He has taught at Wilkes-Barre since 1993 and was head coach of the junior high school wrestling team until May 12, 2014, when he was hired as head varsity wrestling coach at the high school. Because the wrestling team’s practice room is in the high school basement, Belles suggested that Wilkes-Barre 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 claimed that over 100 days passed before Wilkes-Barre made any effort to respond and that Wilkes-Barre expressed opposition to accommodating him. However, on August 28, 2014, he quit just hours before he was to attend a meeting with Wilkes-Barre and a wheelchair lift contractor. Within the span that he was the head high school wrestling coach, he claims Wilkes-Barre discriminated against him by failing to accommodate his ability to practice his team; retaliating for his accommodation request when Wilkes-Barre hired an associate head coach; creating a hostile work environment; and constructively discharging him.
The District Court granted summary judgment finding that Belles’ bad faith argument rested purely on speculation and noting that Belles’ resignation foreclosed the process with Wilkes-Barre to find an accommodation. The court also found that the brevity of his tenure limited the amount of interaction that was reasonably possible. The Third Circuit agreed with the District Court. Belles also alleged discrimination based on the Americans with Disabilities Act, claiming that the hiring of an associate coach was equivalent to a demotion of Belles. The court did not consider this to be evidence of an adverse employment action and agreed with the District Court that a prima facie case of employment discrimination or retaliation was not established. The Third Circuit also agreed that Belles alleged nothing that was tantamount to the existence of a hostile work environment or that he was constructively discharged. Accordingly, the decision of the District Court was affirmed.
OPINION NOT PRECEDENTIAL
Editor’s Note: Pursuant to its Internal Operating Procedures, the Third Circuit declines to cite “not precedential” opinions in its reported decisions.
Click here for the opinion.
David and Renee Henry v. School District of Philadelphia, et al, 2021 WL 185047 (E.D. Pa. 2021)
CIVIL RIGHTS/CONSTITUTIONAL RIGHTS
State-Created Danger • Title VI • Harassment and Race Discrimination
The District Court granted in part and denied in part the defendants’ motion to dismiss in this hostile education environment (HEE) and state-created danger matter filed by the Henrys, who are the parents of a minor student at the School District of Philadelphia (Philadelphia). S.J.K.H. is a minor student who previously attended a school in Philadelphia. She is an African American female with multiple disabilities. The school’s student population is 54% white, 20% African American, 12% two races, 9% Asian and 5% Hispanic. During her time at the school, S.J.K.H. was physically attacked and bullied by at least two students: V.M. and N.S. N.S. is a former student who is white, has a disability and was in a self-contained autism support class at the school. The year he was placed in an “inclusionary environment” was when he attacked S.J.K.H. five times within three weeks. In each case, school employees failed to report several of the attacks to S.J.K.H.’s parents. Although the school did not implement new measures to protect S.J.K.H. after the first and second attacks, N.S. was moved a different homeroom to isolate him away from S.J.K.H after the third attack. After the fourth attack, the school staggered N.S.’ arrival and departure times for school to minimize time spent around S.J.K.H. After the fifth attack, the school did not implement any new disciplinary or security measures to protect S.J.K.H. from N.S., although N.S.’s mother voluntarily elected to keep him home for over two weeks. N.S. attacked two or three students, including S.J.K.H., who are African American and/or Hispanic. He did not attack any white students. Ultimately, S.J.K.H. filed a complaint alleging race-based HEE and state-created danger claims. Philadelphia moved to dismiss both of these alleged claims for failure to state a claim.
The District Court denied the motion to dismiss the HEE claim because N.S. concentrated his attacks on African American and Hispanic students. The court determined that this provided sufficient evidence for the court to infer racial motivation. However, the District Court granted the motion to dismiss the state-created danger claim. The court agreed that S.J.K.H. did not allege a qualifying affirmative act and that merely placing a student in a classroom environment with his victim was not an affirmative act by which a state action can be liable for creating danger for students.
Click here for the opinion.
Kathy Minnich v. Northeastern School District, et al, 2021 WL 254005 (M.D. Pa. 2021)
EMPLOYMENT DISCRIMINATION
Fourth Amendment • Unreasonable Search & Seizure
Fourteenth Amendment • Due Process
Rehabilitation Act • Section 504
The District Court granted in part and denied in part the defendants’ motion to dismiss a complaint filed by Minnich that alleged violations of Section 504 as well as her 14th Amendment due process rights and Fourth Amendment right to be free from unreasonable searches. Minnich commenced her employment with the Northeastern School District (NESD) in August 1999 as a school social worker. She held this position until January 2020, and currently holds the position of long-term substitute school psychologist. On February 23, 2016, Minnich requested workplace accommodations under the Family Medical Leave Act (FMLA) in order to attend therapy sessions to treat her anxiety and panic attacks. She subsequently requested FMLA leave to take her children to therapy appointments in connection with their post-traumatic stress disorder. Both FMLA leave requests were denied on March 7, 2016. In early April 2016, Minnich participated in an investigative hearing held by the Pennsylvania Department of Education concerning her estranged husband and shortly thereafter, she received a Formal Letter of Reprimand. On June 22, 2016, Minnich was informed that her office was being relocated in order to accommodate a floater nurse. Then, in August of 2016, she alleges that the superintendent and others were in her office searching through her personal belongings and files. All of this culminated in Minnich filing a dual charge with the Equal Opportunity Employment Commission and the Pennsylvania Human Relations Commission on December 23, 2016, and she received a Right to Sue Letter but took no action. After filing these claims, Minnich raised claims of bullying and harassment and NESD investigated her claims. In June 2019, she applied for a position as permanent school psychologist and as a result of filing a grievance, Minnich was awarded her present position of long-term substitute school psychologist. In March 2020, Minnich initiated this action alleging violations of her Fourth and 14th Amendment rights as well as claims under Section 504 of the Rehabilitation Act and the Pennsylvania Human Relations Act (PHRA). NESD filed a motion to dismiss all of her claims.
The District Court first reviewed the 14th Amendment due process claim and dismissed it. The court determined that the alleged dissemination of Minnich’s phone records and personal calendar in response to a Right-To-Know Law (RTKL) request did not violate the Due Process Clause. Additionally, Minnich failed to allege a deprivation of a liberty interest in her reputation or a substantive due process claim further necessitating the dismissal of her 14th Amendment claim. The court also dismissed Minnich’s Fourth Amendment claim because she failed to sufficiently allege that she had a reasonable expectation of privacy in her office and its contents based on the “operational realities of the workplace.” The court, however, did not dismiss some of Minnich’s Section 504 claims to the extent she allegedly failed to exhaust her administrative remedies. However, to the extent Minnich’s claims involved causes of action that accrued before the two-year statute of limitations for Section 504, those claims were time-barred. Additionally, the court dismissed Minnich’s Section 504 retaliation and hostile work environment claims finding that the allegations did not sufficiently state either claim. The PHRA claim was also dismissed since there was no justification for the court to exercise supplemental jurisdiction over the state law claims.
Click here for the opinion.
Click here for the order.
In re: Appeal of Coatesville Area School District, 2021 WL 190862 (Pa. 2021)
TAXATION
Tax Assessment • Res Judicata/Collateral Estoppel
In this appeal by allowance, two taxing districts undertook parallel challenges to a property’s partial tax exemption. The Pennsylvania Supreme Court reviewed whether res judicata and collateral estoppel precluded merits disposition of the second taxing district’s appeal to the Commonwealth Court, where the first district elected not to appeal to that court. After a hearing, the Chester County Board of Assessment Appeals (Board) granted a partial exemption of 72%, reasoning that a portion of a property located in Chester County (Property) was used for charitable purposes thereby reducing the Property’s assessment from $954,450 to $267,250. The City of Coatesville (City) and Coatesville Area School District (Coatesville) each filed appeals challenging the Property’s partially tax-exempt status. Coatesville also filed a notice of intervention in the City’s case. The Common Pleas Court issued an order consolidating the appeals for trial, and a consolidated trial was ultimately held in November of that year. The presiding judge expressed uncertainty as to whether the consolidation order applied only to the actual hearing or to the cases as a whole and in the post-trial time frame, he treated it as applying only to the trial. Thus, in resolving the matters, he issued two separate but identical orders, one for each of the appeals, rather than a single order with a double caption. In the orders, he affirmed the Board’s grant of a partial exemption and its assessment figure of $267,250.
Both the City and Coatesville appealed to the Commonwealth Court, and the taxpayer cross-appealed as to each, seeking fully exempt status for the Property. The intermediate court consolidated the four appeals and designated the City and Coatesville as the appellants. The Commonwealth Court vacated and remanded the case to the trial court. On remand, the trial court set forth particularized findings and conclusions, and reaffirmed its earlier decision assessing the Property at $267,250. It issued two opinions to this effect on the same day. The opinions were, again, substantively identical, the only difference being that the captions reflected different docket numbers: one for the City’s case, and the other for Coatesville. At this juncture, the City elected not to appeal to the Commonwealth Court. For its part, Coatesville appealed the ruling in its own case, but it did not appeal the identical, simultaneous ruling which contained the City’s docket number. The Commonwealth Court dismissed Coatesville’s appeal observing that the Common Pleas Court’s ruling in the City’s case became final after no party appealed it. Because Coatesville had intervened in that matter, the court continued, it was a party to those proceedings. With that premise, the court found that res judicata – relating to claim preclusion – and collateral estoppel – relating to issue preclusion – barred it from reaching the merits. The Commonwealth Court noted that a given property can only have one assessed value regardless of how many taxing districts have authority to tax it, suggesting that an “absurd result” could ensue if the assessment figure ultimately reached on appeal in Coatesville’s case were to differ from the trial court’s final, unappealed assessment in the City’s case.
After reviewing the elements and reasons for the doctrines of res judicata and collateral estoppel, the Supreme Court determined that neither was applicable in this matter. In the case of res judicata, concerns relating to the inefficiency and burden of permitting serial litigation of a single claim simply were not present in this dispute. In this case, it did not serve to shield a party or the courts from repetitive or abusive litigation, but to thwart Coatesville’s substantive appellate rights. Additionally, it was not clear that the final judgment in the City’s case constituted a “prior” judgment as is required for the application of res judicata. The same analysis applied to collateral estoppel and the Supreme Court determined that it also did not serve to shield a party or the courts from repetitive or abusive litigation, but to thwart Coatesville’s substantive appellate rights. The court also disagreed that the potential for an irreconcilable ruling could result if the Commonwealth Court ruled any way other than to affirm the trial court. J. Wecht dissented, asserting that Coatesville was estopped from appealing the trial court’s assessment decision based on these two doctrines.
Click here for the opinion.
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PUBLIC SECTOR ARBITRATION
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Thank you to all who plan to or who have contributed recent or older but useful arbitration opinions and awards. PLEASE KEEP THEM COMING!
Shikellamy Education Support Professional Association v. Shikellamy School District
Timothy J. Brown, arbitrator
- Salary Schedule Placement
This grievance, concerning the salary schedule step placement of an office aide, was denied. The parties are subjected to a collective bargaining agreement (CBA) which covers the period of July 1, 2015, through June 30, 2020. The grievant was initially hired by the district as a three-hour school cafeteria employee in November 2017. She was paid $11.40/hour and was represented by a CBA with the Teamsters. In October 2019, she was hired as an office aide by the district and was paid $12.50/hour and represented under this CBA. The union filed this grievance asserting that her hourly rate should be higher and did not reflect her years of service with the district. The union alleged that the grievant should have been earning $15.25/hour to reflect her third year of employment with the district.
The district contended the “Years of Service” language in the CBA refers to the years the employee is in a bargaining unit covered by the CBA. In the grievant’s case, her service as a school cafeteria employee was covered by a different CBA – the one with the Teamsters. The arbitrator concluded that the union failed to meet its burden of establishing that the parties mutually intended that employees transferring into the bargaining unit from other positions in the district should be placed on the wage schedule contained in the CBA that is consistent with the years that they have worked in the district in any capacity. The CBAs establish the terms and conditions of employment only of the employees within the bargaining unit. There is nothing in the law of bargaining or in the language of the CBA that could arguably be interpreted as extending the coverage of the CBA to also establish the terms and conditions of employment to district employees outside of the bargaining unit, including those employees working in food service and covered by the district’s bargaining agreement with the Teamsters. The arbitrator also concluded that the neither the language of the CBA nor the past practice of the district supported the union’s position. Accordingly, the grievance was denied.
Click here for the opinion.
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Pennsylvania Supreme Court grants the Petition for Allowance of Appeal in a Manheim Township School District case
On January 20, 2021, the Pennsylvania Supreme Court granted the Petition for Allowance of Appeal that was filed in the case of J.S. v. Manheim Township School District. The case involves speech threatening a school shooting and causing substantial disruption including distress and alarm to students and a district-wide response as well as police involvement. The Commonwealth Court decision is published at 57 SLIE No. 11.
Click here for a copy of the order granting the petition.
Pennsylvania Supreme Court denies the Petition for Allowance of Appeal in a Dover Area School District case
On January 20, 2021, the Pennsylvania Supreme Court denied the Petition for Allowance of Appeal that was filed in the case of Washington Township Independent School District v. Pennsylvania State Board of Education Petition of Dover Area School District. The case involved an application filed by the Washington Township Independent School District for assignment from the Dover Area School District to Northern York County School District. The application was initially disapproved by the Pennsylvania State Board of Education, but the Commonwealth Court reversed and remanded the matter. The Commonwealth Court decision is published at 57 SLIE No. 12.
Click here for a copy of the order denying the petition.
Department of Education’s Office of Civil Rights (OCR) issues a memo re: Bostock.
On January 15, 2021, OCR issued a memorandum containing its interpretation of Bostock v. Clayton. The memo explains OCR’s interpretation of Title IX as excluding protections for transgender students, stating that Title IX only applies to students on the basis of their “biological sex, male or female.”
Click here for a copy of the memorandum.
District seeking solicitor
The Phoenixville Area School District in Chester County is inviting proposals from school law firms/attorneys interested in appointment as the district solicitor. The Request for Proposals may be found at this link. Proposals are due no later than February 15, 2021.
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INFORMATION FROM PSBSA
For questions about Pennsylvania School Board Solicitors Association (PSBSA) membership status and dues invoices, as well as about the PSBSA officers, board of directors, bylaws and other governance information, please call Stuart Knade at (800) 932-0588, ext. 3377, or email him at Stuart.Knade@psba.org.
The Solicitors Association is looking forward to the upcoming year of programs and dissemination of information regarding legal developments in school law. If you have ideas for legal programs, please send the ideas to your regional director or Stuart Knade or Linda Randby.
Let us Know
Got a tip, a link, a correction, a question, a comment, an observation, a clarification, a wisecrack, an idea you’d like to see addressed? We are always glad to hear from you.
Have you changed your email address, mailing address, or phone number? Please let us know. For questions about this publication, contact Linda Randby (717) 506-2450, ext. 3378. |
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MARK YOUR CALENDAR
Save the date! Spring Legal Roundup
This year, due to the COVID-19 pandemic, Spring Legal Roundup will be virtual on March 24, 2021. Details on how to register will be provided in the near future.
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REGISTER NOW FOR CONTINUING LEGAL EDUCATION WEBINARS
The Continuing Legal Education (CLE) Distance Learning area of the PSBA website and distance learning platform has gone live and is now available here! A 12-session live School Law CLE webinar series kicked off in November. The series of one-credit-hour live webinars will continue on a weekly or biweekly basis, Tuesdays or Wednesdays from 9:00-10:00 a.m. through March 2021. Registration is now open for the next live installments on February 10, February 17, February 24, March 3 and March 10. See below for details and register now!
Note: Per a recent Pennsylvania Supreme Court order, these live programs will be treated as traditional CLE credits, meaning they can be carried forward toward future annual compliance deadlines.
See below for details and register now!
Questions? Contact PSBA Legal Services staff at clelegal@psba.org.
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February 10, 9:00 – 10:05 a.m.
Misadventures in Ethics Land - You can't make this stuff up!
Presenter: Robert H. Davis Jr., Esq., Law Office of Robert H. Davis, Jr.
(1 hour ethics)
February 17, 9:00 – 10:05 a.m.
LGBTQ students in K-12 schools
Presenter: Dr. Kathleen Conn, Esq., LL.M., Ph.D., King, Spry, Herman, Freund & Faul, LLC
(1 hour substantive)
February 24, 9:00 – 10:05 a.m.
Cybersecurity and privacy compliance for PA school solicitors
Presenter: Devin J. Chwastyk, Esq., CIPP/US, McNees, Wallace & Nurick, LLC
(1 hour substantive)
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March 3, 9:00 – 10:05 a.m.
You want COVID leave? After FFCRA? Let’s get answers to your questions
Presenter: John Audi, Esq., Sweet, Stevens, Katz, Williams
(1 hour substantive)
March 10, 9:00 – 10:05 a.m.
Virtual, hybrid and in-person instruction: What every solicitor needs to know about special education
Presenters: Timothy E. Gilsbach, Esq., Fox Rothschild, LLP; and Paul J. Cianci, Esq., Levin Legal Group
(1 hour substantive)
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School Board Solicitors Association Officers
John G. Audi, Esq., President
Rachel K. Lozosky, Esq., President-Elect
Benjamin L. Pratt, Esq., Secretary
Vincent L. Champion, Esq., Immediate Past-President
Legal Services Team
Stuart L. Knade, Esq.
Linda J. Randby, Esq.
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Copyright © 2021 Pennsylvania School Boards Association, All rights reserved.
No claim of copyright to information on other websites or to original U.S. Government Works.
The School Law EDition is a biweekly publication of the Pennsylvania School Board Solicitors Association (PSBSA) and the Pennsylvania School Boards Association (PSBA). This publication is distributed to members of the Solicitors Association and administrators who have purchased the comprehensive subscription package. Except for distribution within the school entity or law office, no part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or otherwise, without the prior written permission of PSBA. This material cannot be shared with other school entities or law firms. All inquiries about reprint permission should be sent to Linda Randby, Editor.
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