2006 Legal Year in Review, Part I

Peggy A. Burns, Esq. | Contributor

School transportation appeared on court dockets and agency agendas once again this year. This segment of “Through the Rear View Mirror” will focus on legal matters related to liability in the employment context and on some cases involving student injury on the bus, including interesting fact patterns involving students left on the bus. Part II next month will focus on special needs transportation.

Employment
Brown v. Danville Community School Corp., 2006 U.S. Dist. LEXIS 26148 (March 15, 2006) was a driver’s lawsuit against a district. The driver claimed that the school district allowed her immediate supervisor to sexually harass her and then forced her resignation in retaliation for her complaint. The driver’s suit failed because she could not demonstrate that she had been performing her job in a satisfactory manner, a necessary showing where she did not provide direct evidence of discrimination.

In Wigginton v. White, 2006 Ill. App. LEXIS 221 (March 24, 2006), the court overturned a state’s suspension of a school bus driver’s permit where a random drug test had been incorrectly administered. The test was positive for this 24-year veteran who had had negative random drug tests throughout her career. The medical review officer gave the driver incorrect information about the appeal process, and her right to request testing of a split specimen. Here, the split specimen had never even been created.

Johns v. Laidlaw Education Services (7th Cir., Sept. 27, 2006, unpublished decision) involved a breakdown of the “interactive process” mandated when an employee becomes disabled under the Americans with Disabilities Act. Although this school bus driver could no longer drive after shoulder surgery, the court held she should have been allowed to present evidence that there was a vacant bus monitor position, for which she was qualified. Instead, her company fired her when she failed to submit to CDL training. The court held both employer and employee responsible for engaging in an interactive process leading to determination of appropriate accommodations for an employee’s disability.

Cox v. South Barber Unified School District 255, 428 F. Supp. 2d 1171 (Kansas, April 25, 2006) involved a driver/custodian’s age discrimination suit against a school district. Cox was non-renewed, and he complained that the superintendent’s age-related comments, made before issuance of the “pink slip,” showed age bias. The court noted that there were budget shortfalls, some older employees were retained, and cutting Cox would result in the greatest cost-savings because of his higher salary. In addition, the custodian/driver exhibited weak performance. Nevertheless, the court refused to rule in the district’s favor without a full trial, because board members were not in agreement as to the factors actually considered in the decision to non-renew Cox.

In Maclin v. A. B. Bus Company, 2006 U.S. Dist. LEXIS 6995 (Illinois, Feb. 22, 2006), a bus attendant’s claim of pregnancy discrimination, leading to her termination following a fight with a driver, failed. The attendant, Maclin, cited her change in route as evidence of wrongful discrimination: she asserted that the company perceived her as no longer able to strap down wheelchairs. Her new route paired her with Watson, a driver with whom she did not get along. Another attendant, Hargrove, inserted herself in a fight between Maclin and Watson, resulting in Hargrove taking the wheel of the bus — and crashing it. Maclin claimed that the fact that Hargrove was not fired pointed to anti-pregnancy bias against her. But the court was persuaded that the termination was not a pretext for discrimination because Watson, who had been in the fight with Maclin, was also fired.

Student Injury
In Vargas v. Columbus Public Schools, 2006 Ohio LEXIS 2322 (May 8, 2006), a driver knew stones had been thrown frequently from outside the bus at a particular location on the afternoon route but did not report the fact to transportation or school officials. The district had no policies requiring the reporting of such potentially dangerous conditions. Mendoza Vargas, a middle school student, was riding the school bus home after school when a stone was thrown from the left side of the bus, entered through an open window, passed a student on the left side of the bus, and hit Vargas in the eye. The boy’s parents alleged that the driver and district’s actions fell within the “operations of a motor vehicle” exception to state-granted immunity of public entities, and the district should be liable for its actions and inactions, and that of its employee. The district prevailed in the years of litigation that followed because the court found that the exception did not apply.

L.W. v. Toms River Regional Schools Board of Education, 886 A.2d 1090, Superior Court of New Jersey, Appellate Division, (Dec. 7, 2005). A student was the victim of harassment onboard the school bus and elsewhere because of perceived sexual orientation. The district argued that there was no cause of action based on this type of harassment. The court concluded that, although Title IX, the federal sexual discrimination law, did not apply, state law did protect students against a hostile environment on the basis of sexual orientation harassment. The district’s responses — including the statement that he could be protected if he rode the school bus (he was entitled to walk) and ate lunch in school (he was entitled to eat in town) — were inadequate, and the court upheld the award of damages.

Students Left Behind
Two Texas cases make clear how driver action or inaction can impact liability determinations when students are left on the bus. Both cases indicate that, despite the outcome of a lawsuit, transportation personnel can spend countless hours in litigation over this significant problem. The potential for injury to students, and, at the least, mistrust in the system, cannot be ignored regardless of a district’s apparent “success” in court.

In Elgin Independent School District v. R.N., 2006 Tex. App. LEXIS 1685 (March 2, 2006), a driver and monitor negligently locked a kindergartner in a school bus. Although the court noted that the state’s sovereign immunity statute applies in the absence of actual operation or use of a school bus, the employees’ “affirmative act” in locking the door allowed the case to proceed to trial against the district, the driver and monitor.

In contrast, in Breckenridge Independent School District v. Valdez. ---S.W.3d--- (Oct. 19, 2006), a 4-year old, severely disabled student was injured when the driver bypassed her school entirely, and forgot to unload her from the bus. The student “remained trapped and abandoned in the bus for approximately two hours.” Because her injuries “arose from a failure of supervision, not from a use or operation of the bus itself,” sovereign immunity applied, and the case was dismissed.

Burns is an attorney and consultant and owner of Education Compliance Group, Inc. She is the editor of Legal Routes, and developer of two video programs, “Steering Clear of Liability: Training for School Bus Drivers” and “Confidential Records: Training for School Bus Drivers.” She is also co-author of “School Bus Stops: A Safety Guide for Transporters.” She can be reached at 888/604-6141, or by email at ecginc@qwest.net.