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Walters v. Carson

United States District Court, Third Circuit

December 19, 2013

MICHAEL WALTERS, Plaintiff,
v.
RICHARD J. CARSON, et al. Defendants.

OPINION

ROBERT B. KUGLER, District Judge.

In this case, Plaintiff Michael Walters ("Plaintiff") asserts claims of age and disability discrimination under the New Jersey Law Against Discrimination, N.J. Stat. Ann. § 10:5-1 et seq. ("NJLAD"), violations of the federal Family and Medical Leave Act, 29 U.S.C. § 2611 ("FMLA"), breach of contract, and violations of his Fifth and Fourteenth Amendment rights against the Board of Education of North Hanover Township, and its employees Dr. Richard Carson and Matthew J. Ernandes, Jr. (collectively the "Defendants"). For the reasons stated herein, the Court finds that Plaintiff has failed to offer evidence in support of his NJLAD age and disability discrimination, FMLA, contract, and constitutional claims that would create a genuine dispute of material fact for trial. Accordingly, the Court will grant Defendants' motion.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Plaintiff's action arises out of his alleged unlawful termination from his employment with the Board of Education of North Hanover Township (the "Board"). Plaintiff believes that his termination was the result of discriminatory animus and in violation of certain of his rights, while the Defendants contend that Plaintiff's termination was due to excessive absenteeism and not any illegitimate reason. As the Court is evaluating the Defendants' motion for summary judgment, it will view the facts underlying the Plaintiff's claims in the light most favorable to Plaintiff, the non-moving party. See Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co., Inc. , 998 F.2d 1224, 1230 (3d Cir. 1993).

Plaintiff was hired by the Board on December 16, 1995, as a maintenance and grounds employee for the North Hanover Township School District. (Defendants' Local Rule 56.1 Statement of Facts ("Defs.' SOF") ¶ 1; Michael Walters Dep. ("Pl.'s Dep."), October 16, 2012, 13:11-22.) As part of his job responsibilities, Plaintiff would make repairs pursuant to work orders, maintain the School District's grounds, and fill in for bus drivers and custodians. (Defs.' SOF ¶ 47; Pl.'s Dep. 13:14-22.) During his tenure with the Board, Plaintiff was supervised by Mr. Lee Hill, the director of the School District's buildings and grounds department. (Defs.' SOF ¶ 44.) The buildings and grounds department was staffed during the day by two maintenance workers, Plaintiff and Mr. Greg Byles, and by their supervisor Mr. Hill. ( Id. ¶ 65.)

Plaintiff's employment contract with the Board was renewed for the 1996-1997 school year, and then renewed each year thereafter for a twelve-month term with a July 1 start date and a June 30 end date. ( Id. ¶¶ 2-3.) Pursuant to this contract, Plaintiff received twelve paid sick days per term, and unused sick days could be accumulated and rolled over into the following year. ( Id. ¶ 4.)

During his employment, Plaintiff used his paid sick leave when he was unable to work due to his physical ailments, namely, gastrointestinal problems. (Plaintiff's Response to Defendants' Local Rule 56.1 Statement of Facts ("Pl.'s SOF") ¶ 4.) From 2003 to 2004, Plaintiff used 11.5 paid sick days. (Defs.' SOF ¶ 55.) From 2004 to 2005, Plaintiff used 10.5 paid sick days. ( Id. ¶ 56.) From 2005 to 2006, Plaintiff used 14 paid sick days. ( Id. ¶ 57.) And, as of March 2007, during the 2007-2008 employment term, Plaintiff used 10.5 paid sick days. (Defs.' SOF ¶ 58.)

On March 14, 2007, Plaintiff suffered "an acute myocardial infarction (heart attack) and underwent emergent cardiac catheterization and angioplasty at St. Francis hospital on the same day." ( Id. ¶ 5.) Per doctor's order, Plaintiff remained out of work until June 4, 2007, and the Board used a long-term substitute to fill in for Plaintiff during his absence. ( Id. ¶¶ 7-8; see also Affidavit of Matthew Ernandes, Jr. ("Ernandes Aff.") ¶ 5, Ex. B (attaching Dr. Jay Patel's Medical Compensable Certificate documenting Plaintiff's heart condition and indicating that Plaintiff's injury will prevent him from engaging in his regular employment until June 4, 2007).) On June 4, 2007, Plaintiff returned to work on a full-time basis and without restrictions. (Defs.' SOF ¶ 9.) For the remainder of the 2006-2007 term, Plaintiff did not use a single paid sick day or no pay day. ( Id. ¶ 10.) Plaintiff's contract with the Board was renewed for the 2007-2008 term. ( Id. ¶ 11.)

On July 1, 2007, the start of Plaintiff's employment for the 2007-2008 term, Plaintiff had twelve sick days at his disposal. ( Id. ¶ 14.) As of August 10, 2007, Plaintiff exhausted all twelve days. (Id.) As of December 14, 2007, Plaintiff used ten "no pay" days. ( Id. ¶ 17). On December 14, 2007, Defendant Matthew Ernandes, who served as Business Administrator and Board Secretary, met with Plaintiff to discuss his absences. ( Id. ¶ 17.) In a memorandum to Plaintiff memorializing this conversation, Defendant Ernandes noted that Plaintiff had "exhausted all of [his] earned sick leave" and that "as of this date [he] [ ] called out sick twentytwo [] days since July 1, 2007, " and had called out "sick a total of nine [ ] days" since Labor Day. (Ernandes Aff. ¶ 15, Ex. E.) Effective immediately, Defendant Ernandes required Plaintiff to furnish a note from his doctor upon his return to work, and instructed Plaintiff that he could not return to work until the note, which had to contain a diagnosis and prognosis, was furnished. (Id.) Finally, Defendant Ernandes instructed Plaintiff that his attendance had to improve. (Id.)

By June 30, 2008, the end of the 2007-2008 contract term, Plaintiff called out sick thirtyone times; this included twelve days of paid sick leave and nineteen days of unpaid sick leave. (Defs.' SOF ¶ 15.) Defendants still renewed Plaintiff's employment contract for the 2008-2009 term. ( Id. ¶¶ 12, 19.)

During the 2008-2009 school year, Plaintiff called out sick twenty times; this included 7.5 days of unpaid sick leave. ( Id. ¶ 19.) On September 19, 2008, Mr. Hill prepared a memorandum to Plaintiff entitled "Excessive Absenteeism and Proper Call Out Procedure." In that memorandum, Mr. Hill informed Plaintiff that, since August, his absenteeism had increased and that he only had 8.5 sick days remaining for the 2008-2009 school year. ( Id. ¶ 20; Ernandes Aff., Ex. F.) Between September 19, 2008, and March 1, 2009, Plaintiff called out sick twelve additional times. (Defs.' SOF ¶ 21.)

On March 3, 2009, Defendant Ernandes met with Plaintiff to discuss his attendance. (Ernandes Aff. ¶ 21.) A letter dated that same day from Defendant Ernandes to Plaintiff, noted that as of February 24, 2009, Plaintiff had exhausted his allotted sick time for the 2008-2009 school year, and that he would need to improve his attendance going forward. (Defs.' SOF ¶ 22, Ernandes Aff., Ex. G.) In that letter, Defendant Ernandes put Plaintiff on notice that his "position in the maintenance department with the North Hanover Township School District [wa]s in jeopardy due to excessive absenteeism." (Ernandes Aff., Ex. G.) Plaintiff's attendance improved in March and April of 2009, but Defendant Ernandes advised Plaintiff that he would continue to monitor his absenteeism for the next six months; this warning was memorialized in a letter to Plaintiff dated May 1, 2009. (Defs.' SOF ¶ 25; Ernandes Aff., Ex. H.) Plaintiff's contract was renewed for the 2009-2010 school year. ( Id. ¶ 26.)

On November 4, 2009, by which time Plaintiff had used ten of his twelve paid sick days for the 2009-2010 school year, Defendant Ernandes recommended to the Superintendent of Schools, Defendant Carson, that Plaintiff's employment contract be terminated and memorialized that recommendation in a letter sent to Plaintiff by regular and certified mail. (Defs.' SOF ¶¶ 27-28; Ernandes Aff. ¶ 25, Ex. I.) Defendant Ernandes based his recommendation on Plaintiff's alleged pattern of absenteeism. (Ernandes Aff., Ex. I.)

On November 13, 2009, Defendant Carson sent Plaintiff a letter by regular mail and hand informing Plaintiff that the status of his employment "may be discussed by the North Hanover Township Board of Education at its Closed Session Meeting of November 17, 2009 and/or its Public Meeting of November 17, 2009." (Ernandes Aff., Ex. J.) Defendant Carson further informed Plaintiff that if he desired he could have the discussion held during the public session. (Id.) Plaintiff did not respond to Defendant Carson's letter, and a closed session was held on November 17, 2009, during which the Board passed a resolution to terminate Plaintiff's employment contract effective December 15, 2009. (Defs.' SOF ¶¶ 34-35.) The next day, Plaintiff was informed of the Board's decision by Defendant Ernandes. ( Id. ¶ 36.)

Approximately two years later, on October 21, 2011, Plaintiff filed suit against the Defendants in the Superior Court of New Jersey, Burlington County. On November 8, 2011, the Defendants filed a Notice of Removal pursuant to 28 U.S.C. § 1441, invoking this Court's jurisdiction under 28 U.S.C. § 1331. Plaintiff filed a Motion to Amend/Correct Complaint on April 10, 2012, (Doc. No. 23), which was granted by Magistrate Judge Donio in an Order dated April 25, 2012, (Doc. No. 24). This motion sought only to amend the complaint to add McNeil-PPC, Inc. as a defendant, and did not amend the complaint as to the Defendants. On April 30, 2012, the Defendants answered the Amended Complaint. (Doc. No. 27.)

On April 26, 2013, the Defendants filed the instant motion for summary judgment.[1] (Doc. No. 59.) The Court will examine each of Plaintiff's claims in turn.

II. LEGAL STANDARD

Summary judgment is appropriate where the Court is satisfied that "there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett , 477 U.S. 317, 330 (1986). A genuine dispute of material fact exists only if the evidence is such that a reasonable jury could find for the nonmoving party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). When the Court weighs the evidence presented by the parties, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255.

The burden of establishing the nonexistence of a "genuine issue" is on the party moving for summary judgment. Aman v. Cort Furniture Rental Corp. , 85 F.3d 1074, 1080 (3d Cir. 1996). The moving party may satisfy its burden either by "produc[ing] evidence showing the absence of a genuine issue of material fact" or by showing' - that is, pointing out to the district court - that there is an absence of evidence to support the nonmoving party's case." Celotex , 477 U.S. at 325.

If the party seeking summary judgment makes this showing, it is left to the nonmoving party to "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586 (1986). Rather, to survive summary judgment, the nonmoving party must "make a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex , 477 U.S. at 322. Furthermore, "[w]hen opposing summary judgment, the nonmovant may not rest upon mere allegations, but rather must identify those facts of record which would contradict the facts identified by the movant.'" Corliss v. Varner , 247 F.App'x. 353, 354 (3d Cir. 2007) (quoting Port Auth. of N.Y. and N.J. v. Affiliated FM Ins. Co. , 311 F.3d 226, 233 (3d Cir. 2002)).

In deciding the merits of a party's motion for summary judgment, the Court's role is not to evaluate the evidence and decide the truth of the matter, but to determine whether there is a genuine issue for trial. Anderson , 477 U.S. at 249. Credibility determinations are the province of the fact finder, not the district court. BMW, Inc. v. BMW of N. Am., Inc. , 974 F.2d 1358, 1363 (3d Cir. 1992).

III. DISCUSSION

A. FMLA Claim

The FMLA provides eligible employees the right to twelve weeks of leave during a twelve-month period for, among other reasons, "a serious health condition that makes the employee unable to perform the functions of" his or her position. 29 U.S.C. § 2612(a)(1); see also Conoshenti v. Public Serv. Elec. & Gas. Co. , 364 F.3d 135, 141 (3d Cir. 2004).[2] Employees who take leave pursuant to the FMLA are entitled to certain protections. For example, an employer may not "interfere with, restrain, or deny [an employee's] exercise of or attempt to exercise" his or her rights under the FMLA (otherwise known as an "interference claim"). 29 U.S.C. § 2615(a)(1); see also Lichtenstein v. Univ. of Pittsburgh Med. Ctr. , 691 F.3d 294, 301 (3d Cir. 2012). Further, an employer may not "discharge or in any other manner discriminate against any individual for opposing any practice made unlawful" (otherwise known as a "retaliation claim"). Id. at § 2615(a)(2); see also Lichtenstein , 691 F.3d at 301.

"To prevail on an FMLA interference claim, [Plaintiff] merely needs to show []he was entitled to benefits under the FMLA and that []he was denied [those benefits]." Yamamoto v. Panasonic Corp. of N. Am., No. 12-2352, 2013 WL 3356214, at *10 (D.N.J. July 2, 2013). In contrast, a claim for retaliation under the FMLA "is based on the idea that the substantive rights established by the FMLA prevent an employer from discriminating against employees or prospective employees who have taken FMLA leave." Thurston v. Cherry Hill Triplex, 941 F.Supp.2d 520, 530 (D.N.J. 2008). To prevail on an FMLA retaliation claim, a plaintiff must prove three things: (1) that he invoked his right to FMLA-qualifying leave; (2) that he suffered an adverse employment decision; (3) that there is a causal relationship between the leave request and the adverse action. Lichtenstein , 691 F.3d at 301-02.

Here, Plaintiff has not specified whether his claim under the FMLA is one for interference or retaliation.[3] However, in his Amended Complaint, Plaintiff sets forth the sole allegation that "[t]he termination of the plaintiff by the [Defendants] constituted a willful violation of the [FMLA]." (Am. Compl. ¶ 18.) Accordingly, the Court will evaluate this claim as one of retaliation.[4] See Yamamoto, 2013 WL 3356214, at *10-11 (collecting cases and holding that because the premise of Plaintiff's claims for retaliation and interference "is that Defendant wrongfully terminated Plaintiff when she returned from FMLA leave... [her] claims are duplicative" and thus will be construed as a single claim of retaliation). Where, as here, a plaintiff's FMLA retaliation claim rests on circumstantial evidence, the Court assesses the plaintiff's case using the familiar burden-shifting framework established in McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973). Lichtenstein , 691 F.3d at 302.

Under the McDonnell Douglas framework, the plaintiff has the initial burden of establishing a prima facie case of FMLA discrimination. See Naber v. Dover Healthcare Assocs., Inc. , 473 F.App'x 157, 159-60 (3d Cir. 2012). Doing so creates a rebuttable presumption that the employer unlawfully discriminated against him. Thurston, 941 F.Supp.2d at 532. Consequently, upon the plaintiff establishing his prima facie case, the burden shifts to the defendant "to articulate a legitimate, nondiscriminatory reason for its adverse employment action." Naber , 473 F.App'x at 160 (quoting Bearley v. Friendly Ice Cream Corp. , 322 F.Supp.2d 563, 571 (M.D. Pa. 2004)). If the defendant employer can offer such a reason, the presumption of unlawful discrimination falls away, and the burden shifts back to the plaintiff, who must show that the employer's proffered reason was simply a pretext for retaliatory animus owing to the plaintiff's decision to take FMLA leave. Id.

Here, Defendants do not dispute that Plaintiff invoked his right to FMLA-qualifying leave, or that he suffered an adverse employment decision. (Defs.' Br. 11-19.) Defendants do contend, however, that Plaintiff "has not established a causal connection between his extended absence and his termination, " and thus cannot establish the third prong of his prima facie case. ( Id. 16.)

1. Whether There is a Causal Relationship Between Plaintiff's Leave Request and His Termination

Establishing a causal relationship between an employee's decision to take FMLA leave and an adverse employment event requires proof of the employer's retaliatory intent. Retaliation need not be the sole reason motivating the adverse employment decision; rather, it will suffice for the plaintiff to show that the retaliatory animus was "a determinative factor, " i.e., that "the action would not have been taken but for [the] protected activity." Culler v. Shinseki , 840 F.Supp.2d 838, 846 (D.N.J. 2011) (citing LeBoon v. Lancaster Jewish Cmty. Ctr. Ass'n , 503 F.3d 217, 231-32 (3d Cir. 2007)).[5] Stated another way, the court's inquiry is whether the proffered evidence "suffices to raise the inference" that the plaintiff's request for FMLA leave was causally related to the adverse employment action in question. See LeBoon , 503 F.3d at 232.

The Third Circuit has noted that there are two main methods of raising such an inference. Abramson v. William Paterson Coll. of N.J. , 260 F.3d 265, 288 (3d Cir. 2001). First, where there exists "unusually suggestive" timing between the leave request and the adverse employment action, such circumstance may be sufficient to establish causation. Lamarca v. Verizon Pa., Inc., No. 09-203, 2010 WL 2044627, at *9 (W.D. Pa. May 20, 2010) (citing LeBoon , 503 F.3d at 232). Second, causation may be established based on a period of "intervening antagonism." LeBoon , 503 F.3d at 232. To make this determination, courts consider "a broad array of evidence." Importantly, it is incumbent upon the employee to demonstrate that the antagonistic behavior began after the FMLA request was made. Compare Randler v. Kountry Kraft Kitchens, No. 11-474, 2012 WL 6561510, at *12 (M.D. Pa. Dec. 17, 2012) (rejecting plaintiff's causation argument in part because the alleged antagonistic behavior towards plaintiff, taking the form of "jokes and remarks, " was "not markedly different from the incidents [the plaintiff] experienced prior to her" engaging in protected activity) with Abramson , 260 F.3d at 289 (crediting plaintiff's evidence of ongoing antagonism in light of evidence of plaintiff's superior's "change in demeanor after [plaintiff engaged in protected activity]") (emphasis added). Finally, in addition to these two primary methods, inconsistencies or discrepancies in the employer's articulated reasons for terminating the employee may be sufficient to support an inference of causation. LeBoon , 503 F.3d at 232; Abramson , 260 F.3d at 290. Id. When considering any circumstantial evidence of causation, the Court is to lend "a careful eye to the specific facts and circumstances encountered." Farrell v. Planters Lifesavers Co. , 206 F.3d 271, 279 n.5 (3d Cir. 2000).

Plaintiff fails to identify any portion of the record supporting an inference that his extended leave in the spring of 2007 was related to his termination in December of 2009. Upon returning to full duty after his leave of absence, Plaintiff continued to work for more than two years, and his employment contract was renewed three more times. (Defs.' SOF ¶¶ 11-12, 19, 25.)

As Plaintiff was terminated more than two years after his leave of absence, there is no "unusually suggestive" timing tending to show a causal relationship between a FMLA-protected activity and his termination sufficient to establish the third prong of Plaintiff's prima facie case. See Brennan v. Norton , 350 F.3d 399, 424 (3d Cir. 2003) (twenty-one month time lapse is too remote in time to support an inference of retaliation). Davis v. City of East Orange, No. 05-3720, 2008 WL 4328218, *9 (D.N.J. Sept. 17, 2008) (3-7 year time lapse between Plaintiff's protected activity and adverse employment action too remote in time to support an inference of retaliation).

Second, Plaintiff has not identified any evidence or portion of the record tending to show that there was a period of "intervening antagonism" after Plaintiff notified Defendants that he would need time off to recover from his heart attack. Indeed, Plaintiff went out on leave on March 14, 2007, the same day that he was hospitalized for this illness. (See Defs.' SOF ¶¶ 5, 7-8; see also Affidavit of Matthew Ernandes, Jr. ("Ernandes Aff.") ¶ 5, Ex. B (attaching Dr. Jay Patel's Medical Compensable Certificate documenting Plaintiff's heart condition and indicating that Plaintiff's injury will prevent him from engaging in his regular employment until June 4, 2007).) Further, Plaintiff has not identified any antagonistic behavior on the part of Defendants after he returned from his leave of absence. The record demonstrates that once Plaintiff returned to work, Defendants met with Plaintiff to address his absenteeism.[6]

Finally, Plaintiff has not identified any evidence showing any inconsistencies or discrepancies in the Board's reasons for terminating his employment. Indeed, the record before the Court documents Plaintiff's absenteeism, Defendants' issue with that absenteeism, Defendants' attempts to encourage Plaintiff to improve his attendance, and finally Defendants' decision to recommend to the Board that Plaintiff's employment be terminated due to his absenteeism. Additionally, Plaintiff has not pointed to any evidence in the record that his postleave absences from 2007 to 2009, which, based on the undisputed record, formed the basis for the Board's decision to terminate Plaintiff's employment, were in any way related to his heart condition.[7]

It is well settled that the FMLA is not to be used as an excuse for sporadic, sick-day type absences. See Sarnowski v. Air Brooke Limousine, Inc. , 510 F.3d 398, 403 (3d Cir. 2007); see also Hayduk v. City of Johnstown , 580 F.Supp.2d 429, 454-55 (W.D. Pa. 2008) (the FMLA does not entitle an employee to take unscheduled and unpredictable, yet cumulatively substantial absences at a moment's notice when reliable attendance is a bona fide requirement of the position). Having failed to point to any part of the record establishing a causal link between his three-month leave in 2007 and his termination in late 2009, and having failed to respond to Defendants' proffered evidence and arguments sufficient to create a genuine dispute of material fact, the Court need go no further in its McDonnell Douglas analysis. Accordingly, Defendants will be granted summary judgment as to this claim.

B. NJLAD Claim Against The Board

Defendants also seek summary judgment as to Plaintiff's claim for wrongful discharge due to his disabilities under the NJLAD.[8]

The NJLAD prohibits an employer from discriminating in the "terms, conditions, or privileges of employment" on the basis of a person's disability. N.J. Stat. Ann. § 10:5-12(a). To state a prima facie cause of action for disability discrimination claim under the NJLAD, the employee must prove "(1) that she was handicapped, (2) that she was otherwise qualified to perform the essential functions of the job, with or without the accommodation by the employer, and was performing at a level that met the employer's expectations, (3) that she nevertheless was fired, and (4) that the employer sought someone to perform the same work after she left." Dicino v. Aetna U.S. Healthcare, No. 01-3206 , 2003 WL 21501818, at *12 (D.N.J. June 23, 2003) (citing Muller v. Exxon Research & Eng'g Co. , 786 A.2d 143, 147-48 (N.J. Super Ct. App. Div. 2001)).[9]

A claimant may use circumstantial evidence to establish his claim under the NJLAD. In evaluating such a claim, the Court again applies the McDonnell Douglas three-step burden shifting framework. See also Wright v. L-3 Comms. Corp. , 227 F.Supp.2d 293, 297 (D.N.J. 2002) (citing Bergen Comm. Bank v. Sisler , 723 A.2d 944, 955 (N.J. 1999)).

Under McDonnell Douglas, Plaintiff has the initial burden of establishing the four elements of a prima facie case of disability discrimination. See Wright , 227 F.Supp.2d at 297. Doing so creates a rebuttable presumption that the employer unlawfully discriminated against him or her. Id. Consequently, upon the plaintiff establishing his or her prima facie case, the burden shifts to the defendant who must "come forward with admissible evidence of a legitimate, non-discriminatory reason for its rejection of the employee." Id. (citing Sisler , 723 A.2d at 955). If the defendant employer can offer such a reason, the presumption of unlawful discrimination falls away, and the burden shifts back to the plaintiff, who must show "that the legitimate nondiscriminatory reason articulated by the defendant was not the true reason for the employment decision but was merely a pretext for discrimination." Id. (citing Sisler , 723 A.2d at 955). When conducting this analysis, the Court is mindful that the plaintiff's burden, in its essence, is to show that his or her disability "played a role in the employer's decisionmaking process and had a determinative influence on the outcome of that process." Monaco v. Am. Gen. Assurance Co. , 359 F.3d 296, 300 (3d Cir. 2004).

Defendants do not contest the third and fourth elements of Plaintiff's prima facie case of disability discrimination. As such, the only issues before the Court are whether Plaintiff was "handicapped" within the meaning of the NJLAD, and whether he was otherwise qualified to perform the essential functions of his job, with or without an accommodation by the Board, and was performing at a level that met the Board's expectations. Because Plaintiff's claim fails on the second element of his prima facie case, whether he was otherwise qualified to perform the essential functions of his job, the Court will not decide whether he has presented sufficient evidence that he was handicapped under the NJLAD. See Mitchell v. Bristol-Myers Squibb Co., Inc., No. 95-1794, 1996 WL 466535, at *5 (D.N.J. May 6, 1996).

1. Plaintiff's Qualification to Perform the Essential Functions of His Job

To establish the second element of a prima facie cause of action for disability discrimination under the NJLAD, the employee must prove that he "was otherwise qualified to perform the essential functions of the job, with or without the accommodation by the employer, and was performing at a level that met the employer's expectations." Dicino , 2003 WL 21501818, at *12. Where an employee has poor attendance, and that poor attendance prevents the employee from performing the essential functions of his job, he will be unable to prove the second element of his prima facie case. See Taylor v. Virtua Health, Inc., No. 05-4271, 2007 WL 1827094, at *4 (D.N.J. June 25, 2007) (Plaintiff with poor attendance, who was warned that further absences would lead to her termination, was unable to prove the second element of her prima facie case for discrimination under the NJLAD, that "she was performing her job at a level that met Defendants' legitimate expectations"); see also Miller v. Univ. of Pittsburgh Med. Ctr., 350 F.App'x 727, 729 (3d Cir. 2009) ("Attendance can constitute an essential function under the ADA").[10]

Defendants argue that due to Plaintiff's absenteeism, he was not performing his job at a level that met his employer's legitimate expectations. (Defs.' Br. 30-31.) Plaintiff does not respond. (See generally, Pl.'s Opp'n Br.)

In support of their argument, Defendants rely on the School District's custodial procedure guidelines, which state that a qualified custodian/maintenance worker must be "in good physical and mental health" and "dependable, on time and willing to work." (Harrison Certification, Ex. 8 at 06.) They also rely on Board missives stating that "the regular presence of assigned personnel is vital to the success of the district's educational program", (id. Ex. 4), and that "employees who have poor absenteeism and tardiness records often do not realize that poor attendance hinders the operation of the school district, (id. Ex. 5). Finally, Defendants Ernandes and Carson, and Mr. Hill all stated that Plaintiff's absenteeism had a negative effect on the operation of the maintenance department during the last few years of his employment. (See Harrison Certification, Ex. 9, Hill Dep. 38:8-15 ("Q When Mr. Walters would call out sick, did another employee replace him for that day or days that he was absent? A No. Q Was that a detriment to the maintenance and grounds department? A Yes. It took away from our workforce, that's for sure."); Carson Dep. 60:14-25 ("Q Did you ever consider hiring a substitute, like a substitute maintenance worker just like you have substitute teachers? A See, when it's sporadic like that, that's very difficult to do. You know, we have subs for the maintenance - I mean for janitorial things, but for maintenance, it's a little bit harder to bring somebody in and then you have them, you know, finding a plumber who has the skills to fix a toilet or to - or to drive a bus - you know, you just don't find those people. So, the department who has two full-time people is down a person, so half the staff is gone."[11]); Ernandes Dep. 83:20-84:14 ("Q Who else was advocating the termination of Michael Walters? A Mr. Hill. I feel that very, very strongly, and understanding this, Mr. Hill had to work with Mr. Walters. Mr. Hill with a small staff... would complain that [Plaintiff] Is never in. I understand that. He's got over 300, 000 square feet of school buildings to maintain, acres of grounds, staff of three people, one of whom is a night supervisor. So, whatever time [Plaintiff] was out was more work for the two men who were left plus himself. So, he was pushing for it. And he was helping maintain a record. And I think he did a good job as a director, that's his job. He was telling me, Matt, you give me work to do, I have assignments to do; I can't get it done with this staff he was telling me."[12]).) Finally, Plaintiff also testified that he was aware that taking too many sick days was grounds for termination. (Defs.' SOF ¶ 103; Pl.'s Dep. 33:7-12.)

Because the undisputed facts show that Plaintiff's attendance was vital to the operation of the maintenance department, he cannot establish he second element of his prima facie case and thus Defendants will be granted summary judgment on this claim as well. See Mitchell, 1996 WL 466535, *7 (finding that, "on the undisputed facts, plaintiff was not otherwise qualified' to perform the custodial tasks for which he was responsible" because "plaintiff demonstrated an apparent inability to attend his job on a regular basis[, ] [t]his absenteeism prevented plaintiff from performing the essential functions of his job[, ]" and "the law require BMS to accommodate plaintiff's absenteeism" where doing so would "eliminate[] an essential element of the job, such as attendance at the work place").

C. NJLAD Claim Against Defendants Carson and Ernandes

Because the NJLAD "imposes liability only on employers' and not on individual employees... the only way for an employee to be found individually liable under the NJLAD is if he is involved in aiding or abetting an employer's discriminatory conduct.... Accordingly, while an employee cannot be held individually liable on his own, [e]mployers and individual supervisors can be held liable under the [NJLAD] for aiding and abetting another's [ ] discriminatory conduct." Horvath v. Rimtec Corp. , 102 F.Supp.2d 219, 228 (D.N.J. 2000) (citing Hurley v. Atlantic City Police Dep't , 174 F.3d 95, 126 (3d Cir. 1999)).

Plaintiff must establish three elements for an aiding and abetting claim under the NJLAD: "(1) the party whom the defendant aids must perform a wrongful act that causes an injury; (2) the defendant must be generally aware of his role as part of an overall illegal or tortious activity at the time that he provides the assistance; (3) the defendant must knowingly and substantially assist the principal violation." Hurley , 174 F.3d at 127 (citations omitted).

Defendants argue that Defendants Carson and Ernandes cannot be held liable under the NJLAD and the Court agrees. Not only does Plaintiff fail to plead a claim for "aiding and abetting" liability, he fails to point to any part of the record that would establish such liability. Regardless of whether Plaintiff has failed to properly allege this claim or point to any part of the record establishing aiding and abetting liability, however, Plaintiff has failed to present triable issues of fact on his underlying disability discrimination claim. Because Defendant North Hanover Township Board of Education is entitled to summary judgment on that claim, Defendants Carson and Ernandes cannot be held individually liable for those same claims. See Monaco , 359 F.3d 307 n.15 ("[I]nasmuch as we hold that the district court correctly granted summary judgment to the corporate defendants, any claim he brought against the individual defendants for aiding and abetting fails as well"); Jackson v. Del. River & Bay Auth., No. 99-3185 , 2001 WL 1689880, at *22 (D.N.J. Nov. 26, 2001) ("If the NJLAD does not apply to the employer [ ], then no individual aiding and abetting liability may be found, because an employer's liability must be shown before any supervisory liability for violations can exist.").

Accordingly, the Court dismisses Plaintiff's NJLAD claims against Defendants Carson and Ernandes.

D. Breach of Contract Claim

Defendants argue that Plaintiff's breach of contract claim fails because he was an at-will employee and because his employment was terminated in accordance with the terms of his contract, which provided for termination by either party upon thirty days' notice. (Defs.' Br. 35.) Plaintiff responds that Defendants breached their contract with Plaintiff when they fired him for using ten of his twelve contractually allotted sick days during the 2009-2010 school year, which Defendants were required to provide pursuant to Board policy and New Jersey labor law.[13] (Pl.'s Opp'n Br. ¶ 1.)

"In New Jersey, an employer may fire an employee for good reason, bad reason, or no reason at all under the employment-at-will doctrine. An employment relationship remains terminable at the will of either an employer or employee, unless an agreement exists that provides otherwise." Witkowski v. Thomas J. Lipton, Inc. , 643 A.2d 546, 552 (N.J. 1994) (internal citation omitted)). If parties' to an employment agreement intend for the relationship to be something other than at-will, such intention must be "specifically stated in explicit, contractual terms." Anderson v. DSM N.V. , 589 F.Supp.2d 528, 534 (D.N.J. 2008) (internal quotation marks and citation omitted)).

Here, the employment contract between Plaintiff and the Board of Education of North Hanover Township explicitly states that it "may at any time be terminated by either party giving to the other 30 days' notice in writing of intention to terminate the same." (Harrison Certification, Ex. 12.) The record indicates that on November 4, 2009, Plaintiff was notified by Defendant Ernandes that the termination of his contract was being recommended to Dr. Carson. (Ernandes Aff. ¶ 25, Ex. I.) On November 13, 2009, Defendants provided Plaintiff with notice that the Board would be considering the status of his employment during a closed session meeting on November 17, 2009. (Ernandes Aff. ¶ 31, Ex. J.) On November 18, 2009, Defendants sent Plaintiff a letter stating that during the November 17 Meeting, the Board "adopted a resolution to terminate your employment with the North Hanover Township School District effective December 15, 2009 due to excessive absenteeism." (Id., Ex. L.) Having been notified by Defendant Ernandes of his intention to recommend termination on November 4, 2009, and being terminated with an effective date of December 15, 2009, Defendants provided Plaintiff with thirty days' notice pursuant to the terms of Plaintiff's employment contract.

Accordingly, because the contract does not include any terms that would overcome the presumption that Plaintiff's employment was at-will, Plaintiff fails to provide any factual support to the contrary, and Plaintiff's termination was done in conformity with the terms of the contract, there are no genuine issues of material fact with regard to this claim and thus it will be dismissed.

E. Fourteenth Amendment Claim[14]

Finally, Defendants argue that summary judgment is warranted as to Plaintiff's claim that Defendants violated his procedural and substantive due process rights. (Defs.' Br. 34-36.) Plaintiff responds that his termination was "arbitrary and capricious", mainly due to the fact that the Board had no policy setting forth the parameters of what constituted excessive absenteeism, and that "[t]his lack of a standard violated [his] procedural and substantive due process rights under the Fourth [sic] Amendment to the United States Constitution."[15] (Pl.'s Opp'n Br. ¶ 5.)

1. Procedural Due Process Claim

"To state a claim under § 1983 for deprivation of procedural due process rights, a plaintiff must allege that (1) he was deprived of an individual interest that is encompassed within the Fourteenth Amendment's protection of life, liberty, or property, ' and (2) the procedures available to him did not provide due process of law.'" Hill v. Borough of Kutztown , 455 F.3d 225, 233-34 (3d Cir. 2006). "To have a property interest in a job... a person must have more than a unilateral expectation of continued employment; rather, she must have a legitimate entitlement to such continued employment. Whether a person has a legitimate entitlement to-and hence a property interest in-his government job is a question answered by state law." Hill , 455 F.3d at 234 (internal citations and quotation marks omitted).

As discussed in Section D above, Plaintiff was an at-will employee under New Jersey law. Because an at-will employee "does not have a legitimate entitlement to continued employment, " Plaintiff "lacked a property interest in retaining his position [as a maintenance and grounds worker] that was sufficient to trigger due process concerns." Id. Accordingly, the Court need not analyze whether the procedures provided in connection with Plaintiff's termination from employment provided due process this claim will be dismissed. Id. at 235.

2. Substantive Due Process Claim

Defendants argue that Plaintiff's employment with the Board is not a fundamental right entitled to substantive due process protection. (Defs.' Br. 34.) Plaintiff simply argues that the lack of any standard for determining whether an employee had been excessively absent violated his substantive due process rights. (Pl.'s Opp'n Br. ¶ 5.)

"To prevail on a substantive due process claim challenging a state actor's conduct, a plaintiff must establish as a threshold matter that he has a protected property interest to which the Fourteenth Amendment's due process protection applies.'" Hill , 455 F.3d at 235 n.12 (quoting Nicholas v. Pa. State Univ. , 227 F.3d 133, 139-40 (3d Cir. 2000)). In order for a property interest to be protected for purposes of substantive due process, "it must be fundamental' under the United States Constitution." Id. In Nicholas, the Third Circuit explicitly held that public employment is not a fundamental right entitled to due process protection. 227 F.3d at 142-43. According, this claim also fails as a matter of law and will be dismissed.

IV. CONCLUSION

For the reasons stated above, the Court will grant Defendants' motion for summary judgment in its entirety. An appropriate order shall issue today.


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