2003 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit 11-12-2003 

# Hubb a r d v . S pr in g field B d of E d P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ocke t N o . 03-1352

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Thi s de c i sion i s br ou gh t t o you for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit at V i l l a no va U nive r sit y S choo l of L a

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w . v i l l a no va . e du/thir dc ir c uit_2003/116NOT PRE CEDENT IAL THE UNITED STATES COURT OF APPEALS

FO R T HE TH IRD CIR CU IT

___________ No. 03-1352

___________ RALPH HU BBARD, Appellant
v. SPRI NGFI ELD BOAR D OF EDUC ATI ON; JONATHAN DA YTON HIGH SCHOO L; MICHAE L L. MOORE; GARY R. FRI EDLAND

___________ ON APPEAL FROM THE UNI TED STATES DIST RICT COURT

FOR THE DISTRICT OF NEW JERSEY (D.C. Civi l No. 00-cv- 04041) Distri ct Judge: The Honorable Kathari ne S. Hayden

___________ Submitte d Under Third Circ uit LAR 34.1(a)

October 31, 2003
BE FO RE : SC IRI CA , Chief Judge , NY GA AR D, a nd A M BR O, Circu it Judges
.
(Fil ed : November 12, 2003)2 ___________ OPINI ON OF THE COURT

___________ NY GA AR D, Circu it Judge.

App ellant Ralph H ubbard appeals the D istrict Court’s order of su mm ary judgment i n favor of Appell ees the Springfie ld Board of Education, J onathan Day ton Hig h S cho ol, M icha el M oor e, an d G ary Fr iedla nd ( colle ctive ly “the Sp ring field BO E” ). Hubbard also appea ls the District Court ’s deni al of hi s motion for reargument . The Distric t Cou rt foun d that H ubb ard’s c laims o f race discrim ination , disability disc rimi natio n, re taliati on, a nd b reac h of con tract , inter alia , were ins uffici ent to warr ant a tri al on the me ri ts . We wil l a ffi rm.

I. FACTS AN D PROCEDURAL HI STORY Be cau se th e fa cts a re k now n to the p artie s, w e rev iew them onl y brief ly. Hubbard was a non-tenur ed custodi an and bus dri ver for t he Springfi eld school s during the spring of 1998 and the enti re 1998-1999 sc hool y ear. His contrac t for t he 1998-1999 school y ear expi red on June 30, 1999, and was not renewed.

In June 1998, Hubbard was asked to help maintai n buses and pre pare the m for an upco ming state insp ection . Acc ordin g to H ubb ard, he wa s told b y his imm ediate supervi sor that if he did good work, when the c urrent Maintenance Coordi nator retired, he
wou ld be recom mend ed to the Sp ringfield BO E for p romotion to that position. Hu bbard3

worked signi ficant

overti me hours on thi s proje ct bet ween June and August 1998, and was compensated for

the ti me that was pre -approved. On October 19, 1998, Hubbard was involved i n an inci dent on the school bus with a t

hird- grade chi ld. The s tudent was t hrowing a balland Hubbard, who was drivi ng the bus, repri manded him, grabbi ng his hand i n the proce ss. At ameeting between the s tudent’ s parent s, the school principa l, a nd Hubbard, Hubbard demonstr ated an inabi lit

y t o controlhis t emper by be rati ng the st udent’s mother and cal ling t he student “hard-hea ded.” As a res ult of t he inci dent and the meeting, Hubbard was removed from du ty as a b us dr iv er an d a ss ig ne d c us to di al d ut ies on ly.

On December 16, 1998, Hubbard suffered a back inj ury . Hubbard was on disabi lit y l eave for the remainder of the schoolyear , despi te Spri ngfiel d BOE’s insurance carri er’s de termination t hat he coul d return to work in March 1999. I n May 1999, the Springfi eld BOE notifie d Hubbard by l ette r that his cont ract wit h the school , which expired on J une 30, 1999, was not being renewed.

Hubbard file d his i niti al complai nt agai nst the Springfi eld BOE in New Jersey state cour t. The Sprin gfield BO E the n rem oved the ca se to fe deral c ourt w here it
was co ns ol id at ed wit

h a Fed er al Equ al Empl oy men t Op por tu ni ty Comm is si on c la im . O n June 20, 20 02, the Distric t Cou rt gran ted su mm ary judgm ent on beha lf of th e Sp ringfie ld BOE, disposing of al l Hubbard’s c laims. On January 9, 2003, t he District Court

denied4

Hubbard’s moti on for rear gument. This appeal fol lowed, and this Court has jurisdi ction under 28 U.S.C. § 1291. II . DIS CUSS ION A. Standard of Revi ew

This court

has plenary r eview of the Dis tri ct Court’ s decis ion to gr ant
sum ma ry judg me nt. See Bla ir v. S cott S pec ialty Ga ses, 283 F .3d 595, 60 2-03 (3d Cir. 200 2). W e ap ply the sam e sta nda rd a s us ed b y the D istrict Co urt. Id. A grant of
sum mary jud gm ent is ap prop riate “if th e plea ding s, dep osition s, answ ers to interrogatories, and ad missions on file, together with the a ffidavits, if any, show th at there is no genui ne issue as to anymateri al fact and that the moving party is entitl ed to a judgm ent as a m atter of law.” F ed. R. C iv. P. 56(c). B. Rac e D iscrimin ation C laim

Hubbard clai ms the Dist rict Court erred when it found he di d not make out a prima faci e case of ra ce discrimination under Ti tle VIIof the Civi l Rights Act of 1964 (“Title VII”) an d the N ew Jerse y Law A gainst Discrim ination (“N JLA D”).

To m ake ou t a prima fac ie case of d iscriminatory discharge u nder T itle VII or the NJLAD, a plai ntiff must show (1) he i s a member of a prot ected cl ass, (2) he was qualif ied for t he position from which he was di scharged, and (3) others not in the pro tecte d cla ss w ere tr eate d m ore fav ora bly. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 ( 1973) . The Distri ct Court he ld that Hubbard’s case was insuffi cient5

on th e seco nd p rong beca use h is disqu alificatio n fro m d riving b uses le ft him unab le to perform one of the joint duties the j ob demand ed— custodial servi ces and driv ing bus es. Additional ly , the Distri ct Court s aid Hubbard fai led to s how under the third prong that others not in th e pro tected class w ere trea ted m ore fa vora bly. We agree with both determinations.

Hubbard misunderst ands the al location of burdens for a dis crimination clai m. Because we find that Hubbard fai led to make out a prima faci e case of ra ce discrimination, t

he burden never

shift ed to the Springfi eld BOE for it t o give a
non disc rimi nato ry reas on f or th e no n-re new al of Hu bba rd’s con tract . M cD onn ell Douglas , 411 U.S . at 80 2. C. Disa bility Discrim ination Claim

According to Hubbard, the Dist rict Court erred when it found he di d not set forth a prima facie case of di sabil ity discrimination under t

he Americans with Disabil iti es Act (“A DA ”).

A prima facie c ase of dis crimination under the ADA includes a showing that the plaintiff (1) is disa bled w ithin the AD A’s d efinition , (2) is oth erw ise qu alified to perform the essential f

unctions of his j ob, and (3) has suffer ed an adverse employment dec ision as a resu lt of h is dis abili ty. Deane v. Poco no M ed. Ctr. , 142 F.3d 138, 142 (3d Cir. 1998) . The District Court held t

hat Hubbard’s case fai led the firs t prong because he did not sho w h e ha s a d isab ility with in th e A DA ’s de finit ion
. See 42 U .S.C . § 12 102 (2).6

We concur with the Dis tri ct Court’ s determinati on, as Hubbard di d not all ege impairment of any majo r life activity. Even if we w ere to inquire into the se verity of Hub bard’s impairment , the insurance carrier’ s beli ef that he was able t o return to work as of March 1999 is i ndicative that Hubbard cannot show a disabi lit

y under the ADA’s stri ct st andard. D. Reta liation C laim

Hub bard asserts it wa s error for the D istrict Court to order sum mary judgm ent on be half of the S pringfield B OE on his retaliation claim. T he D istrict Court hel d that , a s wi th hi s ot her di sc ri min at io n cl ai ms, Hubb ar d fa il ed t o de mons tr at e a p ri ma fac ie ca se. A prima facie c ase of ret aliation requires showings that (1) the plai ntiff

was engaged in a pr otect ed acti vity , (2) the employ er took an a dverse employment acti on at the ti me of or subsequent to the protect ed acti vity , and (3) there was a c ausal l ink between the a ctivi ty and the e mp loym ent a ction
. Sha ner v. Sy nth es, 204 F .3d 494, 50 0 (3d C ir. 2000). The District Court found that Hubbard’s retaliation claim failed to sat isfy t he first prong, as he all eged ret aliation bas ed on race and di sabil ity , rat her than a

protected acti vity . Even assumi ng the activit y i n questi on was Hubbard’s fil ing of an Equal Em ployme nt O ppo rtunity claim , wh ich w ould be pr otecte d, the D istrict Co urt said his claim failed on th e seco nd an d third p rong s. W e w ill affirm the D istrict Co urt. E. Brea ch of Co ntract C laim7 The Distri ct Court gr anted summaryjudgment t o the Spri ngfiel d BOE on Hubbard’s brea ch of contr act cl aim. Hubbard contends the Springfie ld BOE breached an oral pr om ise that it w ould prov ide him contin ued e mp loymen t and p rom ote him to Maintenance Coordi nator. We agree with the Distri ct Court t hat the re is no issue of materi al fact

as to t his “pr omise,” which was neithe r bindi ng nor firm. The “promise” of continue d employment

expired, if it

existed at al l, when Hubbard demonstrated he lacked the demeanor to be trus ted with s tudents as a bus dri ver. Addit ionall y, the “promi se” of promotion was condi tional . Hubbard was to be pr omoted onlyif he per formed
sa ti sfactor il y , t

he c urre ntMain te nan ce Co or di nat orre ti re d, andth e BOE a ppr ove d hi m. F. Du e Pro cess C laim

The D istri ct Court did not directl y address whether there was a due process violat ion based on l ack of noti ce by t he Springfi eld BOE. The Court, however, touched on H ubbard ’s due proc ess claims in its opinion . Dist. Ct. Op., 22-2 3. We apply a plenary st an da rd of

re vi ew t o thi s q ue stio n of la w. Hu bbar d alleg es the S pring field B OE denie d him his co nstitution al right to due process by fai ling to provide s upplementalinformation with i ts notific ation t hat Hubbard’s contract was not being rene wed. Hubbard cit es New JerseyStatute § 18A:27- 4.1(b) to saythe Spri ngfiel d BOE should have provided hi m with the re asons his contrac t was not renewed and notified him that he had a right to appear before the BOE to contest the deci sion. Hubbard misconst rues the stat

ute, however, when he reads it as affording8

him an automatic ri ght. The i nformati on and opportuni ty need onlybe provided upon
wr itten req ues t, wh ich w as n ot m ade her e. See N.J. St at. § 18A:27-4.1( b) (re ferenci ng N.J. St at. § 18A:27-3.2) ; N.J. A.C. § 6:3-4. 2(a). Similarly , Hubbard’s reliance on Clev eland Bd. o

f Edu c. v. Lo uder mill , 470 U .S. 532 (198 5), is ineffective, as that case’s recognit ion of a prope rtyinterest i n a job is inappli cable. We do not equate the nonrenewal of Hubbard’s annual cont ract wit h the te rminati on of Loudermill ’s employ ment contrac t, unde r which he coul d be fire d only for cause. Hubbard’s due proc ess cl aim thus fails. II I. CONCLU SI ON

For the r easons set

forth, we will affi rm the Dist rict Court’s order of summary j udgment in favor of the Spri ngfiel d BOE. W e will a lso re fuse to di sturb t he Distri ct Court’ s denialof Hubbard’s moti on for rear gument, as Hubbard has not establ ished t

hat the Distri ct Court abused it s discretion.

_________________________ TO THE C LERK:

Please fi le the foregoing opi nion.

/s/ Richard L. Ny gaard Circuit Judge