Part II

Reprinted from School Transportation News, Jan. 2001, all rights reserved.

by Peggy A. Burns, Esq.

A surprising number of this year's cases concerned employment issues. Here's a sampling.

When is driving neglect of duty? A driver's refusal to obey the school board's order suspending him from driving was willful neglect of duty. Termination was upheld. Vermillion Parish Drivers Assoc. v. Vermillion Parish Schl. Bd., Louisiana, 6/7/00

Did a reorganization violate a supervisor's constitutional rights? McHugh claimed that his supervisory job was eliminated because he criticized a contractor's drivers and practices. The court ruled that his statements about safety, wrongdoing by public officials, and board policies, were matters of public concern protected by the First Amendment. Where these statements were a motivating factor in his non-renewal, the case would proceed to trial. McHugh v. Bd. of Ed. of Milford Schl Dist., Delaware, 6/5/00.

Was termination reasonable or retaliatory? Falvey was reprimanded numerous times and for insubordination, unsafe and negligent practices, and unexcused absences. When she complained about sexual harassment by Oswalt, Director of Transportation, disciplinary proceedings against her were suspended during the investigation. The district's staff counsel found no evidence to support her complaint, and the process resumed. Falvey was suspended, and did not return to work for many months.

Within two months after her return, the district received 9 complaints about her (all but one from the same woman). The district terminated her shortly thereafter, citing the complaints and her absenteeism. She sued, claiming these grounds were pretexts for retaliation based on her charges against Oswalt.

The court found that the only evidence to support her absenteeism was one instance of calling in too late. In addition, the district never investigated the allegations in the letters. As a result, the case would proceed to trial on Falvey's claims. Falvey v. Naperville Public Schl. Dist., Illinois, 3/10/00.

When can drug testing run afoul of anti-discrimination laws? Stockett, a black bus driver employed by a transit system (AMITS@), was required to submit to a drug test after his supervisor received an anonymous report that Stockett had been smoking crack. The supervisor concluded that the test was warranted when Stockett appeared red-eyed and Auncharacteristically calm@ during a tense meeting. When the driver tested positive, he was terminated.

Merryweather was a white driver who was permitted to enter a rehabilitation program after a positive drug test. He was observed for 2 days by his supervisor when, following his return, MITS received complaints that he had again used drugs. When there was no observable indication of drug use, he was not required to submit to a drug test

Stockett filed suit against MITS, claiming discrimination. The court found that MITS' requiring Stockett to be tested was not an adverse employment action which could support a claim of discrimination. The court did say, however, that when a drug test is not routinely performed pursuant to a policy, Abut is conducted in a manner that harasses or humiliates an employee, requiring that the employee submit to the drug test as a condition of employment may be an adverse employment action that is actionable under Title VI.@ Stockett v. Muncie Indiana Transit System, 7th Cir., 7/21/2000.

Are you required to hire a drinker as a driver? Martin was hired as a driver, and later bid for and was awarded a custodial position with the school district. Shortly thereafter, he was observed drinking on the job. The district allowed him to keep his position if he signed a ALast Chance Agreement,@ specifying a number of conditions, which he fulfilled. Three years later he applied to be a part-time driver and part-time bus garage worker with the district. Although he was the most senior applicant, the district did not give him the transfer because of the earlier drinking incident.

Martin sued, claiming his rights were violated under the Americans With Disabilities Act. The court said that even if Martin was a protected alcoholic, the ADA does not protect him from his own bad judgment in drinking on the job. Martin cannot force the district to hire him as a school bus driver when there is a serious risk that he may again drink on the job, have an accident and kill a group of school children.@ Since the district cited a non-discriminatory reason for its action, Martin lost the case. Martin v. Barnesville Sch. Dist., 6th Cir., 3/14/2000.

Peggy Burns is in-house counsel to Adams Twelve Five Star Schools in Colorado. You can reach her at (303) 604-6142, or at edcompli@aol.com.