The opinion of the court was delivered by: Arthur J. Schwab United States District Judge
On October 2, 2007, plaintiff Ronald Isler filed a three count complaint against the Keystone School District and ten individuals who are members, officers or employees of the Keystone School District ("District") Board of Directors ("Board"), setting forth the following causes of action: Count I, a civil rights claim under 42 U.S.C. § 1983 alleging that defendants retaliated against him for engaging in protected speech concerning a disabled student ("Student Doe"), in violation of the First and Fourteenth Amendments, when they refused to renew his contract to provide bus services for students in the District after the 2006 school year; Count II, a retaliation claim under the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq., and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., alleging defendants retaliated against plaintiff because of his "advocacy" on behalf of Student Doe; and Count III, a state claim alleging a violation of the Pennsylvania Whistleblower Act, Purdon's Pa. Stat. Ann, tit. 43, §1423, based on the same allegedly retaliatory conduct. All of the claims against the individual defendants are made in their official and individual capacities as Board members, officers or employees of the District.
The "Factual Background" for these claims is alleged at Section IV, ¶¶ 45-78, of the Complaint. Plaintiff was an independent contractor for the District for 22 years, and was operating at relevant times pursuant to a contract that was due to expire at the end of the 2006-2007 school year. Complaint, ¶¶ 47-51. Beginning in September 2006, "Student Doe," a "seriously ill and/or disabled student," was assigned to plaintiff's bus, and according to the route design, was the last student picked up in the morning, and the last student dropped off in the afternoon. Complaint, ¶¶ 54-56.
According to the Complaint, "[i]n or about February of 2007," plaintiff noticed that Student Doe was becoming agitated and combative during the long afternoon ride home, and would, according to plaintiff, "sometimes fall unconscious." Complaint, ¶ 57. Plaintiff claims that, "after discussions with Student Doe's father," Plaintiff "learned" that defendants were not accommodating the student's medical needs, and that the long bus ride was exacerbating his condition. Complaint, ¶¶ 58-59. Plaintiff claims that he thereafter "[r]epeatedly advised Defendants that Student Doe's health was in jeopardy," including that he "proposed to defendant [Vernon Lauffer, the District's Business Manager, who was responsible for bus routes] that his bus route be slightly adjusted to accommodate Student Doe's medical needs . . . with minimal disruption." Complaint, ¶¶ 59-62. Plaintiff also claims to have "advised one or more members of Defendant Keystone's board of the situation . . .," and "made several efforts to complain on behalf of Student Doe." Complaint, ¶¶ 64-65.
Plaintiff's suggestions were met with hostility, although "[e]ventually," the District provided alternative "special needs" transportation for Student Doe. Complaint, ¶¶ 63, 66. Plaintiff claims that this alteration in Student Doe's transportation was "as a result of Plaintiff's complaints and complaints by Student Doe's father . . . ." Complaint, ¶ 66. Nevertheless, according to plaintiff, the District retaliated against him for his "protected speech" on behalf of a disabled student when the Board voted not to renew his contract on June 25, 2007. Complaint, ¶¶ 69-78.
Defendants' Answer consisted mostly of general denials because, after reasonable investigation, defendants were at that time without sufficient knowledge or information to respond more specifically. However, as to the plaintiff's averments that he repeatedly advised defendants about Student Doe's health issues, defendants state: "It is denied that Plaintiff repeatedly advised Defendants that Student Doe was being placed in jeopardy and at risk of serious harm or death as a result of the bus ride. To the contrary, Plaintiff refused to permit Student Doe to ride his bus due to behavior issues and at no time prior to his refusal did he report a perceived health risk to Student Doe." Defendants' Answer, ¶ 60.
On December 5, 2007, this Court entered an Order of Court Denying Motion to Dismiss (doc. no. 9), finding that defendants' motion to dismiss raised issues that were premature in the absence of discovery, and therefore denied the motion "without prejudice to defendants raising the issues set forth therein in a motion for summary judgment at the appropriate time following discovery." Now before the Court, after extensive discovery, is Defendants' Motion for Summary Judgment (doc. no. 39). After careful consideration of the motion, plaintiff's response, the briefs in support and in opposition to summary judgment, and a rather large number of supporting deposition transcripts, documents and other materials submitted by both parties, the Court will grant summary judgment in defendants' favor on all federal causes of action, as to which plaintiff cannot sustain his burden of proof, and will relinquish supplemental jurisdiction over the Pennsylvania Whistleblower Act claim.
II. Summary Judgment Standards
"Rule 56 of the Federal Rules of Civil Procedure 'mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'" Marten v. Godwin, 499 F.3d 290, 295 (3d Cir. 2007), citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Summary judgment is appropriate "'if 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." Woodside v. Sch. Dist. of Philadelphia Bd. of Educ., 248 F.3d 129, 130 (3d Cir. 2001), quoting Foehl v. United States, 238 F.3d 474, 477 (3d Cir. 2001) (citations omitted). An issue of material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Doe v. Abington Friends Sch., 480 F.3d 252, 256 (3d Cir. 2007) ("A genuine issue is present when a reasonable trier of fact, viewing all of the record evidence, could rationally find in favor of the non-moving party in light of his burden of proof."), citing Anderson and Celotex Corp..
In deciding a summary judgment motion, a court must view the facts in the light most favorable to, draw all reasonable inferences, and resolve all doubts, in favor of the nonmoving party. Doe v. County of Centre, PA, 242 F.3d 437, 446 (3d Cir. 2001); Woodside, 248 F.3d at 130; Heller v. Shaw Indus., Inc., 167 F.3d 146, 151 (3d Cir. 1999). Further, the court must not engage in credibility determinations at the summary judgment stage. Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 643 n. 3 (3d Cir. 1998), quoting Fuentes v. Perskie, 32 F.3d 759, 762 n.1 (3d Cir. 1994).
B. Employment Discrimination and Retaliation -McDonnell Douglas
At the summary judgment stage, claims of discrimination and of retaliation under the anti-discrimination statutes are both analyzed under the burden- shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Sarullo v. U.S. Postal Serv., 352 F.3d 789, 799-800 (3d Cir. 2003) (Title VII and ADEA retaliation and discrimination claims follow the McDonnell Douglas evidentiary burden framework); Goosby v. Johnson & Johnson Medical, Inc., 228 F.3d 313 (3d Cir. 2000) (claims for both discrimination and retaliation under Title VII and Pennsylvania Human Relations Act follow the McDonnell Douglas evidentiary burden framework). Similarly, the McDonnell Douglas framework applies to both discrimination and retaliation claims brought under the auspices of 42 U.S.C. § 1983. St. Mary's Honor Society v. Hicks, 509 U.S. 502, 506 n.1 (1983); Stewart v. Rutgers, the State University, 120 F.3d 426, 432 (3d Cir. 1997) (McDonnell Douglas framework deemed applicable to allegation of racial discrimination under 42 U.S.C. § 1983).
As summarized in Stanziale v. Jargowsky, 200 F.3d 101 (3d Cir. 2000):
The parties' burdens in establishing and defending claims under the ADEA and Title VII are determined by the procedure set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Showalter v. University of Pittsburgh Medical Center, 190 F.3d 231, 234 (3rd Cir.1999). A plaintiff must first produce evidence sufficient to convince a reasonable factfinder as to all of the elements of a prima facie case of discrimination. Id. If a plaintiff establishes a prima facie case, " '[t]he burden of production (but not the burden of persuasion) shifts to the defendant, who must then offer evidence that is sufficient, if believed, to support a finding that the defendant had a legitimate, nondiscriminatory reason for the [adverse employment decision].' " Id. at 235 (quoting Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3rd Cir. 1997) . . . . An employer need not prove, however, that the proffered reasons actually motivated the . . . decision.
Fuentes v. Perskie, 32 F.3d 759, 763 (3rd Cir. 1994). If a defendant satisfies this burden, a plaintiff may then survive summary judgment by submitting evidence from which a factfinder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action. Keller, 130 F.3d at 1108; Fuentes, 32 F.3d at 763. 200 F.3d at 105 (parallel and additional citations and footnotes omitted). See also Shaner v. Synthes (USA), 204 F.3d 494, 500 (3d Cir. 2000)("the burden-shifting framework of McDonnell Douglas . . . applies to ADA disparate treatment and retaliation claims.").
In the retaliation context, therefore, if the employee establishes a prima facie case of retaliation, the McDonnell Douglas approach "'shifts [the burden] to the employer to advance a legitimate, non-retaliatory reason' for its conduct and, if it does so, 'the plaintiff must be able to convince the factfinder both that the employer's proffered explanation was false, and that retaliation was the real reason for the adverse employment action.'" Moore v. City of Philadelphia, 461 F.3d 331, 342 (3d Cir. 2006), citing Krouse v. American Sterilizer Co., 126 F.3d 494, 500-01 (3d Cir. 1997).
C. First Amendment Retaliation - Prima Facie Case
To prevail on a First Amendment retaliation claim brought pursuant to 42 U.S.C. § 1983, a plaintiff must prima facie 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, 250 F.3d 188, 194-95 (3d Cir. 2001). More recently, the United States Court of Appeals for the Third Circuit recognized that, in the public employer-employee context, the test had been significantly modified by the United States Supreme Court in Garcetti v. Ceballos, 547 U.S. 410 (2006) ("the First Amendment does not prohibit managerial discipline based on an employee's expressions made pursuant to official responsibilities.").
In Reilly v. City of Atlantic City, 532 F.3d 216 (3d Cir. 2008), the Court of Appeals explained:
The District Court evaluated [plaintiff's] First Amendment retaliation claim under the following three-step framework: (1) the employee must demonstrate that his/her speech is protected, that is, it addresses a matter of public concern and the "employee's interest in the speech outweighs" the employer's countervailing interest "in promoting workplace efficiency and avoiding workplace disruption" (i.e., the balancing test established in Pickering v. Bd. of Educ., 391 U.S. 563 (1968)); (2) the employee must prove that his/her speech was "a substantial or motivating factor" in the retaliatory action against him/her, which, if proven; (3) shifts the burden to the employer to prove that the "allegedly retaliatory action would have been taken absent the protected [speech]." Id. at 514-15 (quoting Springer v. Henry, 435 F.3d 268, 275 (3d Cir. 2006)).
In undertaking the requisite analysis, the District Court relied on Baldassare v. New Jersey, 250 F.3d 188, 195-97 (3d Cir. 2001) . . . .
In analyzing Reilly's retaliation claim, the District Court asked [only] whether Reilly's speech involved a matter of public concern and whether the Pickering balancing weighed in favor of Reilly. . . . We have stated that following Garcetti, [a] public employee's statement is protected activity when (1) in making it, the employee spoke as a citizen, (2) the statement involved a matter of public concern, and (3) the government employer did not have "an adequate justification for treating the employee ...