Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-26-2005

Zappan v. PA Bd Probation
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3866




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 04-3866


                                 RONALD ZAPPAN,

                                                Appellant

                                           v.

           PENNSYLVANIA BOARD OF PROBATION AND PAROLE;
          WILLIAM WARD; JAMES ROBINSON; GARY SCICCHITANO;
                  EDWARD JONES; VERONICA THOMAS



                      Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                           (D.C. Civil Action No. 00-cv-01409)
                     District Judge: Honorable Mary A. McLaughlin


                              Argued September 27, 2005

                Before: ALITO, AMBRO, and LOURIE,* Circuit Judges

                           (Opinion filed: October 26, 2005)

Robert J. Sugarman, Esquire (Argued)
Joseph Cohn, Esquire
Sugarman & Associates
100 North 17th Street
Robert Morris Building, 11th Floor
Philadelphia, PA 19103

        * Honorable Alan D. Lourie, Circuit Judge for the United States Court of Appeals
for the Federal Circuit, sitting by designation.
       Counsel for Appellant

Gino J. Benedetti, Esquire (Argued)
Jennifer A. Parda, Esquire
Maria L.H. Lewis, Esquire
Miller, Alfano & Raspanti
1818 Market Street, Suite 3402
Philadelphia, PA 19103

       Counsel for Appellees


                                        OPINION


AMBRO, Circuit Judge

       Ronald Zappan, a white male and former Deputy District Director of the

Pennsylvania Board of Probation and Parole (the Board), filed this suit against the Board

and certain of its supervisors and executives alleging he was the victim of unlawful

retaliation in violation Title VII of the Civil Rights Act of 1964, the First Amendment,

and the Pennsylvania Human Rights Act as a result of his refusal to assist the defendants

in discriminating and retaliating against certain African-American employees under his

direct supervision. Zappan also claimed that the defendants’ actions violated his rights

under the Age Discrimination in Employment Act, substantive and procedural due

process, and his equal protection rights.

                            I. Facts and Procedural History

       The facts recited in the light most favorable to Zappan are as follows. He began

his employment with the Board on January 30, 1972, as a parole agent. In April 1990,

                                            2
Zappan was promoted to Deputy District Director of the Board’s Philadelphia District, a

position he held until his retirement effective August 28, 1998. In March 1995,

defendant Willie E. Jones was promoted by the Board to Deputy District Director of the

Board’s Allentown District. Zappan and several others challenged the selection

procedure used by the Board to promote Jones by filing an appeal with the State Civil

Service Commission. Specifically, Zappan challenged the geographic restriction

imposed by the Board on the job opening, as it precluded him and the other individuals

bringing the appeal from competing for the job. The Commission held a hearing on the

issue during which Zappan testified. In June 1996, the Commission found that the

procedure used to promote Jones was improper and, as a result, removed him as the

Allentown District’s Deputy District Director.

       In April 1997, the Board installed Jones as the Philadelphia District Director, a

position that required him to serve as Zappan’s direct supervisor. Zappan claims that in

late 1997 Jones requested that he assist Jones in a pattern of discriminatory retaliation by

imposing disciplinary action on several of Zappan’s African-American subordinates who

had previously brought suit against the Board and various Board personnel, including

Zappan, for systematic racial discrimination and retaliation. Specifically, Zappan

testified that Jones demanded he initiate disciplinary proceedings against, or terminate

the employment of, any individual under his watch who was not performing his job to

standard. Zappan alleges that Jones’ demands were directed at Parole Supervisor Henry


                                             3
Watkins, Parole Agent Howrhu Self, Parole Supervisor Darryl Rankin, and Parole

Supervisor Hugh Young. Watkins, Self, and Rankin are African-American. Young is

Caucasian. Moreover, Watkins, Self, and Rankin were plaintiffs in the aforementioned

race discrimination lawsuit.

       Zappan informed Veronica Thomas, Eastern Regional Director of Board, James

Robinson, Director of the Board, and Gary Scicchitano, Director of the Bureau of Human

Resources for the Board, of Jones’ disciplinary demands in separate telephone calls. He

related to them that any discipline imposed on the African-American individuals might

violate the settlement agreement those individuals had reached with the Board in the race

discrimination suit. Robinson and Scicchitano each informed Zappan that they were

unaware of the settlement agreement to which he referred. Both men also indicated that

Zappan should seek Jones’ advice regarding any disciplinary action. Zappan testified

that Scicchitano further reminded him he was not mandated to comply with any of

Jones’ demands and he should put any objection he had to the discipline at issue in

writing. There is nothing in the record to indicate that Zappan ever objected in writing to

Jones’ allegedly unlawful demands.

       Zappan testified that he refused to follow Jones’ disciplinary demands. He

conceded, however, that Watkins and Self deserved to be disciplined and, in fact,




                                             4
recommended that each of them be disciplined1 but not terminated. The Board

disciplined both Watkins and Self in 1998 almost exactly as Zappan had recommended.2

At no time did the Board discipline either Young or Rankin. The record also establishes

that, prior to the issuance of Jones’ alleged demands, Zappan disciplined, counseled or

criticized the performance of the very same employees he now contends Jones insisted he

discriminate against in retaliation for their participating in the race discrimination suit.

       In March 1998, Jones prepared Zappan’s Employee Performance Review (EPR)

for the period covering March 1997 to March 1998. Jones rated Zappan’s overall

performance as “needs improvement.” Jones testified that he rated Zappan this way due

to his failure to manage his division to ensure Pardon Board investigations were

completed on time and parole re-entry cases were opened promptly. Specifically, on

June 4, 1997, Jones assigned six Pardon Board investigations to each of the three deputy

directors in the Philadelphia District, one of whom was Zappan. Jones requested the

deputy directors complete those investigations no later than July 10, 1997. Zappan

concedes his division failed to meet the initial deadline and several extended deadlines

and blamed that failure on under-staffing, inadequate training, and a lack of cooperation

from the correctional institutions. Zappan contested the rating he received in his March

       1
       Zappan recommended that Watkins and Self receive a verbal reprimand and a
two-day suspension, respectively.
       2
      The Board issued Watkins a verbal reprimand and Self a three-day suspension.
The Board terminated Watkins on August 3, 2001 for unrelated conduct. Self resigned on
March 18, 1999.

                                               5
EPR and met with Jones on at least two occasions to discuss the problem. According to

Zappan, the March EPR blocked promotional opportunities for him. Zappan, however,

failed to allege specifically any examples of missed opportunities.

       On March 12, 1998, Zappan arrived forty-five minutes late to work. Four days

later, Jones held a pre-disciplinary conference with Zappan to discuss his tardy arrival.

During the conference, Zappan admitted arriving late to work and explained that it was a

result of a traffic accident on Interstate 95. Jones wrote a memorandum to his supervisor

summarizing the conference and recommending Zappan receive a written reprimand.

After reviewing Jones’ memorandum, the Board issued Zappan a written reprimand and

charged him with leave for the forty-five minutes of work he missed on March 12.

Zappan claims the written reprimand blocked promotional opportunities for him, but

again failed to provide any examples of such missed opportunities.3

       On March 26, 1998, Jones asked Zappan for a detailed report due March 30

concerning the chronic failure of Zappan’s division to open parole re-entry cases.

Zappan’s report, which was submitted on April 1, stated that the cases in his unit were

not opened in a timely manner because his division was improperly staffed and not

properly trained. On April 28, Jones wrote a memorandum to his supervisor

recommending Zappan be suspended for his infractions. In response, the Board



       3
        Zappan also claims that he and Young were required to work overtime hours
without pay in March.

                                             6
suspended Zappan for five days without pay.

       Zappan appealed his March EPR, April 15 written reprimand, and five-day

suspension to the Commission in two separate appeals. The Commission conducted a

hearing during which Zappan was able to present testimony and evidence in support of

his first appeal. In July, the Commission found that the Board had violated Section 905.1

of the Civil Service Act and ordered the Board to expunge Zappan’s March EPR from

his personnel file as well as reimburse Zappan for the forty-five minutes of lost wages.

The Board appealed the Commission’s decision to the Commonwealth Court of

Pennsylvania, which reversed the Commission’s order concerning the March EPR but

affirmed the Commission’s order regarding the forty-five minutes of wages.

       The Commission conducted another hearing to resolve Zappan’s second appeal

challenging his five-day suspension. At the conclusion of that hearing, the Commission

ruled that the Board failed to prove good cause for suspension. The Board again

appealed the Commission’s order to the Commonwealth Court of Pennsylvania, and it

affirmed. On July 21, 2001, the Board reimbursed Zappan for the wages he lost during

his five-day suspension.

       In July 2000, Zappan filed a complaint in federal District Court against the Board,

William Ward, Chairman of the Board, Robinson, Scicchitano, Thomas, and Jones. The

complaint asserted the following seven claims: (1) racial discrimination and retaliation in

violation of Title VII of the Civil Rights Act of 1964; (2) age discrimination in violation


                                             7
of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq.; (3)

violations of procedural due process actionable through 42 U.S.C. § 1983; (4) violations

of substantive due process actionable through 42 U.S.C. § 1983; (5) selective treatment

equal protection violations actionable through 42 U.S.C. § 1983; (6) retaliation in

violation of the First Amendment actionable through 42 U.S.C. § 1983; and (7)

retaliation in violation of the Pennsylvania Human Rights Act (PHRA).

       By agreement of the parties, the District Court dismissed all of Zappan’s claims

against the individual defendants in their official capacities and all the claims against the

Board except for Title VII and ADEA claims. The defendants, save Thomas,4 moved for

summary judgment on Zappan’s remaining claims. The District Court granted the

defendants’ summary judgment motion in its entirety and Zappan filed a motion for

reconsideration of that order. He then filed a motion for leave to supplement his motion

for reconsideration. The Court denied both of these motions. This appeal followed.


                                      II. Jurisdiction

       The District Court had subject matter jurisdiction under 28 U.S.C. § 1331 and 28

U.S.C. § 1343, and supplemental jurisdiction under 28 U.S.C. § 1367. We have

appellate jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.



       4
         There was no summary judgment motion filed on behalf of Thomas because
counsel for the defendants withdrew from representing her with the Court’s permission
earlier in the proceedings.

                                              8
                                 III. Standard of Review

       We review grants of summary judgment de novo, applying the same standard that

the District Court applied. Union Pac. R.R. v. Greentree Transp. Trucking Co., 

, 125 (3d Cir. 2002). Pursuant to Fed. R. Civ. Pro. 56(c), summary judgment should

be granted only where the “pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue

as to any material fact and that the moving party is entitled to a judgment as a matter of

law.” See Celotex Corp. v. Catrett, 

, 325 (1986). When considering a

motion for summary judgment, a court must view all evidence in favor of the

non-moving party. Bixler v. Cent. Pa. Teamsters Health & Welfare Fund, 

,

1297 (3d Cir. 1993). Accordingly, all doubts must be resolved in favor of the

non-moving party. Meyer v. Riegel Prods. Corp., 

, 307 (3d Cir. 1983). To

challenge successfully a motion for summary judgment, the non-moving party must be

able to produce evidence that “could be the basis for a jury finding in that party’s favor.”

Kline v. First W. Gov’t Sec., 

, 485 (3d Cir. 1994).

                                       IV. Analysis

       A. Contested Material Facts

       Zappan contends that, in dismissing his claims on summary judgment, the District

Court improperly relied on contested issues of material fact and ignored certain evidence

raising inferences in his favor. A review of the evidence on which Zappan bases this


                                             9
claim, however, makes clear that his characterization of the facts is not supported in the

record.

          Zappan identifies four specific factual findings he maintains the District Court

either erroneously found as uncontested or impermissibly ignored. First, he maintains

that the Court ignored testimony of Daniel Solla, Deputy Director of the Board’s

Philadelphia District, which illustrates that Solla was also the victim of retaliation when

he was denied clerical support and charged with three counts of insubordination. Solla’s

deposition testimony does not support these allegations. Indeed, he testified that (1)

Jones never asked him to discipline improperly any of his agents and (2) Jones provided

him with overall ratings of outstanding and commendable.

       Next, Zappan contends the District Court improperly disregarded the testimony of

Young indicating that Jones intended to discriminate and retaliate against African-

Americans who had been party to the racial discrimination suit against the Board.

Zappan claims that Young testified that he knew and/or believed that Jones sought to

fire those employees. A review of Young’s testimony, however, reveals that (1) he

believed that Jones sought to discipline Self because he was not doing his job and (2) he

had only heard of Jones’ alleged discriminatory and retaliatory intentions through general

gossip channels, which he makes a practice of ignoring.

          Zappan further submits that the District Court improperly disregarded evidence

that the African-American individuals he was pressured to discipline were subsequently


                                              10
fired and/or constructively discharged from their employment with the Board after they

were disciplined. This allegation is also unsupported by the record. Indeed, the

following facts are undisputed and undermine Zappan’s characterization of the evidence

before the District Court: Zappan conceded that Watkins and Self deserved to be

disciplined for their respective employment deficiencies; Zappan recommended that

Watkins receive an oral reprimand and Self receive a two-day suspension; the Board

issued Watkins an oral reprimand and Self a three-day suspension; the Board fired

Watkins on August 3, 2001, more than three years after Jones’ alleged unlawful

demands, for unrelated conduct; Self resigned more than one year later on March 18,

1999; the Board never disciplined Young or Rankin; Young retired on August 13, 1999;

and Rankin retired on January 2, 1999. It is also uncontested that, prior to Jones’ alleged

demands and in some instances prior to Jones’ appointment as Deputy District Director,

Zappan disciplined or counseled the very same employees he now contends Jones

demanded that he terminate.

       Finally, Zappan argues that the District Court improperly accepted as true the

allegedly contradicted fact that Jones was unaware of the settlement agreement arising

from the race discrimination lawsuit brought by the African-American employees against

the Board and Zappan. Zappan’s claim that Jones knew of the settlement agreement is

not supported by the record. Jones testified that he was not aware of the settlement

agreement during the time Zappan alleges he made the discriminatory disciplinary


                                            11
demands. Relying on his own deposition testimony, Zappan maintains that Jones made it

clear to him in a conversation between the two of them that he was aware of the

settlement agreement. Zappan is certainly entitled to rely on his own deposition

testimony, but that testimony does not support his allegation. Instead, it reveals that

Zappan mentioned the settlement agreement to Jones because he believed that Jones was

alluding to individuals involved in that dispute.

       For the reasons provided above, we cannot conclude that the District Court

improperly relied on contested issues of material fact and ignored certain evidence

raising inferences in Zappan’s favor.

       B. Retaliation Claims

       Zappan further contends the District Court erroneously found that he produced

insufficient evidence to establish a prima facie case of retaliation under Title VII, the

PHRA, or Section 1983. Because the same facts and circumstances underlying a Title

VII retaliation claim are relevant to the resolution of Zappan’s PHRA and Section 1983

claims, these issues will be addressed simultaneously. See Azzaro v. County of

Allegheny, 

, 981 (3d Cir. 1997) (en banc) (same facts and considerations

relevant in evaluating causation under Title VII and Section 1983); Woodson v. Scott

Paper Co., 

, 920 (3d Cir. 1997) (elements of PHRA retaliation claim and

Title VII retaliation claim are the same).

       To establish a prima facie case of retaliation under either Title VII or the PHRA, a


                                             12
plaintiff must show that “(1) he or she engaged in a protected employee activity, (2) the

employer took an adverse employment action after or contemporaneous with the

protected activity, and (3) a causal link exists between the protected activity and the

adverse action.” Weston v. Pennsylvania, 

, 430 (3d Cir. 2001). Similarly,

to prevail on a First Amendment Section 1983 retaliation claim, a plaintiff must establish

that (1) he engaged in protected speech, (2) his interest in the protected speech outweighs

the employer’s countervailing interest in promoting the efficiency of the public service it

provides to its employees, and (3) the protected activity was a substantial or motivating

factor in the alleged retaliatory action. Baldassare v. New Jersey, 

, 194-95

(3d Cir. 2001). Moreover, an employer can rebut the claim by demonstrating it would

have reached the same decision even in the absence of the protected conduct. 

The District Court held that Zappan failed to satisfy the above-enumerated elements and,

as a result, dismissed his retaliation claims with prejudice.

       The crux of Zappan’s lawsuit is that he engaged in protected activity when he

complained about Jones’ allegedly discriminatory and retaliatory demands that he

discipline certain African-American employees who were parties to the settlement

agreement with the Board. Employees engage in protected activity under Title VII and

the PHRA when they (1) oppose an unlawful employment practice, (2) file a charge of

discrimination, or (3) participate in a charge brought by another. 42 U.S.C. § 2003-3a;

43 P.S. § 955(d); see also Abramson v. William Patterson Coll., 

, 288 (3d


                                             13
Cir. 2001) (stating that complaints – whether oral or written, formal or informal – about

unlawful employment practice satisfy the first prong of the prima facie case under Title

VII). Similarly, a plaintiff’s activity is protected under the First Amendment whenever

he engages in speech involving a “matter of public concern.” 

.

       The Supreme Court has made clear, however, that simply opposing an

employment practice does not rise to the level of a protected activity if no reasonable

person could believe that the actions complained of were unlawful. Clark County Sch.

Dist. v. Breeden, 

, 271 (2001) (per curiam) (holding no prima facie Title

VII case established where no reasonable person could have believed she was

complaining of protected activity); see also Barber v. CSX Dist. Serv., 

, 702

(3d Cir. 1995) (stating that for discrimination complaint to rise to matter of public

concern, it must sufficiently contain allegations of illegal discrimination). In Breeden,

the plaintiff was reviewing psychological evaluation reports of several job applicants

with a male supervisor and a male 

. One of the applicant’s

reports disclosed the fact that he had once said to a female co-worker: “I hear making

love to you is like making love to the Grand Canyon.” 

read this

comment out loud, looked at the plaintiff, and said: “I don’t know what that means.” 

co-worker replied: “I’ll tell you later,” and both men chuckled. 

later complained about this interaction to another supervisor. 

                                             14
When the plaintiff was subsequently terminated, she brought a Title VII retaliation claim.

       The Supreme Court affirmed granting the defendant’s motion for summary

judgment because “[n]o reasonable person could have believed that the single incident

recounted” amounted to a Title VII hostile work environment claim. 

The

Court reasoned that it was a necessary part of the plaintiff’s job to read and review

sexually explicit statements such as those contained in the psychological reports, and the

“isolated inciden[t]” at issue did not amount to such an abusive environment that it was

actionable. 

Court concluded that the plaintiff was not terminated

for activity protected under Title VII. 

conduct Zappan complained about was Jones’ instruction that Zappan

discipline subordinates who were not doing their job. The record supports the District

Court’s rationale for ruling that “[a] reasonable fact finder could not conclude that there

was discrimination when Jones was seeking discipline for [the three African-American]

employees [named in Zappan’s complaint].” App. vol. I, at 21a. The District Court

explained that

       [t]he request made by Mr. Jones was a general demand that no reasonable
       person could believe was based on race. He wanted people who were not
       doing their jobs to be terminated regardless of their race. Mr. Jones made
       no reference to either the race of the individuals who needed to be
       disciplined or even to specific individuals who were all of one race. It was
       the plaintiff who concluded that Mr. Jones’s demands were racially
       motivated. The plaintiff decided that Mr. Jones was referring to three
       African American employees who the plaintiff believed had a settlement

                                              15
       agreement with the Board.
              Even if Mr. Jones intended Mr. Zappan to discipline the three
       individuals that Mr. Zappan thought were the subject of the discipline
       demands, no reasonable fact finder could conclude that Mr. Jones was
       discriminating against the individuals. Mr. Zappan acknowledges that Mr.
       Watkins and Mr. Self were in need of discipline[,] going so far as to tell
       Mr. Jones that both employees were guilty of insubordination. Mr. Zappan
       also recommended discipline for both employees that only differed
       marginally from what each employee received. A reasonable fact finder
       could not conclude that there was discrimination when Mr. Jones was
       seeking discipline for employees guilty of insubordination.
              With respect to the individuals mentioned by name in the
       conversation between Mr. Jones and Mr. Zappan – Mr. Rankin and Mr.
       Young – there is no evidence allowing a reasonable person to find that Mr.
       Jones acted discriminatorily towards either employee. Mr. Zappan stated
       that Mr. Rankin was mentioned because he was already scheduled for a
       pre-disciplinary conference. As to Mr. Young, Mr. Jones did talk about
       Mr. Young’s performance with Mr. Zappan, but he never requested Mr.
       Zappan to discipline Mr. Young. Neither discussing discipline for an
       individual scheduled for a pre-disciplinary conference nor discussing the
       performance of a subordinate would allow a reasonable person to conclude
       that Mr. Jones was acting discriminatorily without more.

       With regard to Zappan’s expressions of concern in his conversations with

Robinson, Scicchitano, and Thomas, the District Court noted that Zappan’s “concern is

almost more that the settlement agreement was being breached than there was

discrimination.” 

In other words, what Zappan specifically communicated to

Jones’ supervisors was his belief that Jones was disciplining certain subordinates without

the safeguards provided for in the settlement rather than acting out of racial or retaliatory

animus or for a racist purpose. We agree.

       In sum, the District Court’s factual findings are well supported. While the record

                                             16
makes clear that Zappan and Jones were not fond of one another and had a history of

contentious clashes, it reveals no evidence to support Zappan’s allegations of retaliation

or racial discrimination. For the reasons provided above, the District Court’s ruling that

no reasonable person could find that Zappan’s opposition to the defendants’ conduct was

protected activity is affirmed. Because this determination is dispositive, we need not

address Zappan’s challenge to the District Court’s determination that it failed to establish

any causal connection between his alleged protected activity and adverse employment

actions.

       C. Equal Protection

       Zappan next contends the District Court erred in dismissing his equal protection

claim. To bring a successful claim under 42 U.S.C. § 1983 for a denial of equal

protection, a plaintiff must prove the existence of purposeful discrimination. Batson v.

Kentucky, 

, 93 (1986). Specifically, Zappan must demonstrate that he

“receiv[ed] different treatment from that received by other individuals similarly situated,”

Kuhar v. Greensburg-Salem School Dist., 

, 677 n.1 (3d Cir. 1980), and the

different treatment was improperly motivated by discrimination or punishment for

exercising a constitutional right. Andrews v. City of Philadelphia, 

, 1478

(3d Cir. 1990).

       In support of his argument, Zappan alleges that (1) unlike other directors, he was

denied clerical support and was disciplined for tardiness, and (2) the Board deviated from


                                             17
its progressive disciplinary policy when it issued his five-day suspension. While there is

no record evidence confirming these claims, there is record evidence that tends to

discredit them. Indeed, Zappan expressly controverts his first allegation – that he alone

was denied clerical support – in his brief to our Court by stating that Solla, a similarly

situated white Board supervisor, was denied clerical support. See Pet’r. Br. at 30 (stating

“[t]he deposition of Solla showed that he too had been the victim of retaliation from

defendant Jones in the form of a denial of clerical support”). Moreover, Zappan relies on

the testimony of Robinson to bolster his second allegation – that his suspension

constituted a deviation from the Board’s progressive disciplinary policy – but Robinson

testified that Zappan’s five-day suspension fell within the standard suspension range for

a management employee. App. vol. II, at 258a. Because the record evidence does not

support and, in fact, tends to refute Zappan’s contention that he was treated differently

than similarly situated Board supervisors, we are compelled to affirm the District Court’s

dismissal of his equal protection claim.

       D. Procedural Due Process

       Zappan maintains that the District Court erred in dismissing his procedural due

process claim. Specifically, Zappan alleges he did not receive sufficient due process

concerning his written reprimand and five-day suspension. The essential requirements of

any procedural due process claim are notice and the opportunity to be heard. Cleveland

Bd. of Educ. v. Loudermill, 

, 546 (1985). As with Zappan’s other claims,


                                             18
the record supports the District Court’s conclusion that “[e]ach time Zappan was

disciplined . . . he received adequate process.” App. vol. I, at 31a. Accordingly, the

District Court’s dismissal of Zappan’s due process claim is affirmed.

       E. Claims Against Thomas

       Zappan also argues that the District Court erred in refusing to allow his claims

against Thomas to proceed to trial. This contention is unpersuasive. Zappan brought the

same claims against Thomas as he brought against the other defendants. Because the

analysis justifying the dismissal of the Zappan’s claims applies to Thomas with the same

force as to the other defendants, the District Court’s denial of Zappan’s request to

proceed to trial against Thomas is affirmed.

                                         *****

       As explained above and for substantially the same reasons set forth in the District

Court’s opinion, we affirm the dismissal of Zappan’s claims.




                                               19