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Erik D. Hove v. James Cleary

June 6, 2011


The opinion of the court was delivered by: Hon. Garrett E. Brown, Jr.


BROWN, ChiefJudge:


This matter comes before the Court upon the motions for summary judgment (Doc. Nos. 7, 9) filed by Defendants James Cleary, Monmouth Regional High School ("MRHS"), Maria Parry, and Vicki Smith (collectively "Defendants"). Defendants seek summary judgment and/or dismissal of all causes of action filed by Plaintiff Erik D. Hove. For the reasons that follow, the Court will grant summary judgment in favor of Defendants for claims I--V, and the Court will dismiss claim VI for lack of subject matter jurisdiction.


This case involves allegations of employment discrimination against a school bus driver on the basis of disability and gender, as well as unlawful drug-testing practices and disclosure of medical records. In discussing the relevant facts, the Court draws all reasonable inferences in favor of Plaintiff, the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587(1986).

Plaintiff worked as a bus driver for the MRHS beginning in 1988. (Compl. at ¶1; MRHS Defs.' 56.1 Statement ¶ 3(F).) Defendant Smith was Plaintiff's supervisor as the MRHS Transportation Supervisor. (MRHS Defs.' 56.1 Statement ¶ 4(A); Pl.'s 56.1 Resp. ¶ 5.) Defendant Parry was Defendant Smith's supervisor as the MRHS Board of Education's Business Administrator. (MRHS Defs.' 56.1 Statement ¶ 5(A); Pl.'s 56.1 Resp. ¶ 9.) Defendant Cleary was the MRHS Superintendent of Schools. (MRHS Defs.' 56.1 Statement ¶ 6(A); Pl.'s 56.1 Resp. ¶ 9.) Plaintiff, who was married to Ms. Smith's daughter, began to have marital problems in or about 2000, when Plaintiff's wife allegedly started an affair. These marital problems allegedly led Plaintiff to suffer from depression and ultimately led Plaintiff to attempt suicide in September 2007 and again in January 2008. During this time frame, Plaintiff also suffered a torn rotator cuff, and he underwent shoulder surgery in November 2007. Following the operation, Plaintiff was on disability leave from work between November 2007 and June 2008. (MRHS Defs.' 56.1 Statement ¶ 3(I--K, Q); Pl.'s 56.1 Resp. ¶¶ 1, 11; Compl. ¶ 6.) The parties agree that, prior to the fall of 2008, Plaintiff had no disciplinary problems at work. (MRHS Defs.' 56.1 Statement ¶3(X).)

Upon returning from disability leave, Plaintiff attended a "welcome back" meeting for the school's bus drivers in August 2008, whereupon Mr. Cleary noticed that Plaintiff appeared disheveled, lethargic, and out of the ordinary. Mr. Cleary, who knew Plaintiff personally and understood that Plaintiff was dealing with marital difficulties and had attempted suicide, asked to meet with Plaintiff privately. Plaintiff informed Mr. Cleary that he was going through a difficult time, that he was under a doctor's care, and that he may have unintentionally abused prescription medications. As a result of this conversation and out of concern for Plaintiff's ability to safely operate as a school bus driver, Mr. Cleary asked Plaintiff to undergo drug and psychological testing, and Plaintiff agreed. (MRHS Defs.' 56.1 Statement ¶ 6; Pl.'s 56.1 Resp. ¶ 9.) Plaintiff passed these tests. Although the Complaint only referred to this blood-testing incident, Plaintiff now alleges that he was subjected to additional blood tests in or about June 2008 and October 2008. According to Plaintiff, Ms. Smith demanded that he submit to a "Return to Work" drug test, which is administered to employees who have previously failed a drug or alcohol test, when he returned to work in June 2008, and he received a third drug test in October 2008 after a police officer pulled him over, while driving a full school bus, for suspicion of driving while intoxicated. (See Pl.'s Certif. at 3, 8.) Plaintiff apparently passed these tests. It is undisputed that, over a four-month period from November 2008 to March 2009, Plaintiff was late to work or did not show up to work on five occasions. Plaintiff was also involved in three at-fault traffic accidents over a six week period in the beginning of 2009. (MRHS Defs.' 56.1 Statement ¶ 3(X--Y); Pl.'s 56.1 Resp. ¶¶ 1, 9.) In addition, Plaintiff admitted during his deposition that the school may have received a complaint in October 2008 that he was driving erratically. (Reilly Certif. Ex. C ("Hove Dep.") at 136.) The MRHS Board of Education held a meeting on March 31, 2009 and terminated Plaintiff's employment. According to Ms. Parry, the MRHS Board of Education's Business Administrator, Plaintiff's termination "was the combined result of the five failures to either show up or call out between October 23, 2008 and March 11, 2009 and the three at fault accidents in a six week period between February 2, 2009 and March 23, 2009." (Reilly Certif. Ex. I ¶¶9--10.)

Plaintiff filed suit in the Superior Court of New Jersey, Law Division, Monmouth Vicinage on February 7, 2010. Plaintiff's Complaint presented claims under 42 U.S.C. § 1983; the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), 29 U.S.C. § 1181; the New Jersey Civil Rights Act, and the New Jersey Law Against Discrimination (NJLAD). Plaintiff's claims allege violation of his constitutional rights to due process and to be free from unreasonable searches and seizures, gender and disability discrimination, and unlawful disclosure of medical records. Defendants timely removed the matter to this Court for the District of New Jersey pursuant to 28 U.S.C. § 1331 on the basis of federal question jurisdiction. Defendants now move for summary judgment or dismissal of all claims, asserting inter alia that Plaintiff has not put forth colorable evidence substantiating his claims, and that there is no private right of action under HIPAA. Plaintiff filed a two-page response brief, which only appears to address Plaintiff's NJLAD claim of disability discrimination. Plaintiff also filed a responsive statement pursuant to Local Civil Rule 56.1, that is supported entirely by Plaintiff's unsworn certification. In his response brief, Plaintiff contends that Defendants failed to make reasonable accommodations for Plaintiff, who was under psychiatric care and taking medications. (See Pl.'s Br. at 1--2.)


A. Summary Judgment

A party seeking summary judgment must "show[] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Hersh v. Allen Prod. Co., 789 F.2d 230, 232 (3d Cir. 1986). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (noting that no triable issue exists unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict in its favor). In deciding whether triable issues of fact exist, this Court must view the underlying facts and draw all reasonable inferences in favor of the nonmoving party. Matsushita, 475 U.S. 574, 587 (1986); Pa. Coal Ass'n v. Babbitt, 63 F.3d 231, 236 (3d Cir.1995).

Defendants challenge the sufficiency of Plaintiff's proofs on all claims. This Court has federal question jurisdiction over Plaintiff's § 1983 claim pursuant to 28 U.S.C. § 1331, and this Court has supplemental jurisdiction over ...

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