by Peggy A. Burns, Esq.

Happy New Year, everyone! Here are key transportation cases reported during the last year. This installment focuses on employment cases decided at the end of December, 2002, and during 2003. Part II will cover cases that directly impact students.

Litigation Against a Transporter Arum v. Miller, NY, 7/28/03 ). The mother of a disabled student argued with the director of pupil services over her son's school transportation. The director took the student's file out of his mother's hand, accidentally hitting her, causing a bruise and a chipped tooth. She refused to leave; the director called the police and filed a trespass complaint. The mother simply held out her hands to be handcuffed, and the police arrested her. The director and school district did not want her prosecuted, and the complaint was dismissed.

When the mother sued the director, claiming violation of her civil rights and malicious prosecution, the court ruled that the matter must proceed to trial. Stay tuned.

Retaliation Branch v. Guilderland Central School District (NY, 1/10/03 ). Branch, a driver, complained about a transportation director's offensive conduct toward female employees. The director responded by interfering with Branch's job duties, giving negative evaluations and trumped-up discipline, and even lodging a false sexual harassment charge. Three and a half years after the retaliation began, Branch was terminated. He sued in federal district court, and won.

Fair Labor Standards Act Hiner v. Penn-Harris-Madison School Corporation ( Ind. , 3/03). 20 bus drivers alleged that mandatory bus inspections, as well as their drive time to their first morning pick-up and from their last student drop-off, should be counted as hours worked under the FLSA. The district conceded that pre-trip inspections are compensable working time. They also agreed that for drivers who parked their buses at the transportation center, getting to and from student pick-up and drop-off points constitutes hours worked. And, where drivers are required to park at home because their homes were closer than the transportation center to their first pick-up or last drop-off, their time "on the clock" begins whenever they conduct a safety inspection before they left for the first route. Similarly, the drivers' trips back to their homes constitute "working time" if they conducted a safety inspection upon arrival at their homes.

The parties' bargaining agreement established that drivers would be paid for ½ hour of maintenance activities. The court found that drivers who could accomplish the necessary inspections in less than ½ an hour shouldn't receive extra pay. Drivers who could prove inspections took longer than ½ hour where they regularly spent the time and documented the work, should receive additional pay if the additional time pushed them over the 40-hour week.

Driver's Prior Sexual Behavior The People of the State of NY v. Eugene R. Martin , (NY, 7/16/03 ). Martin had been indicted by a Grand Jury in 1981 for the forcible rape of a 27-year-old female. Martin was 29 at the time. He subsequently pled guilty to a lesser charged and served a 9-month sentence. Now 52 years old, Martin was in court to get permission to drive a school bus.

The court's risk analysis showed that Martin presented a "low-moderate" risk for repeat sexual behavior, and held that Martin's "1981 conviction will have no bearing on his ability or fitness to operate a bus transporting persons under the age of twenty-one or persons of any age who are mentally or physically disabled."

Drug Testing Anderson v. Independent School District No. 97 , ( Minn. , 2/10/03 ). Last year's "In the Rearview Mirror" reported that driver Anderson sued the school district for defamation when it stated that he had failed to provide an adequate urine sample for random drug testing. The claim was dismissed, and, in this 2003 case, the school district requested an award of costs and attorney's fees as the prevailing party.

The court found that although the district had won, Anderson 's evidence "was not so deficient as to make his case frivolous, unreasonable or groundless," and denied the school district's claims.

Disability Discrimination Claim Shannon v. New York City Transit Authority , (2 nd Cir., 6/13/03 ). The Transit Authority discovered driver Shannon was colorblind after he had driven for six weeks, and sought his resignation. Shannon sued on the basis that he had been constructively discharged in violation of the Americans with Disabilities Act (ADA).

He claimed that, although he was not actually disabled, NYCTA regarded him as disabled. But even where the ADA might apply, the plaintiff must show that he was "otherwise qualified" to do the job. Where Shannon was unable to distinguish traffic light colors, he could not perform an essential function of the job. The court held that "Color differentiation is a qualification that NYCTA may properly deem essential for driving a bus because it [relates] to the safety of passengers and ... limits NYCTA's liability in situations where colorblindness may cause an accident ..."

Age Discrimination Claims EEOC v. Liberal R-II School District , (8 th Cir., 12/31/02 ). George Trout had been hired by the school district at the age of 66. Four years later, the Board of Education voted to non-renew his employment for the following school year. A 67-year-old driver was reassigned to drive Trout's former route.

The superintendent allegedly told Trout that the non-renewal was because of his age. The Board denied age was a consideration, and cited safety concerns. The 8 th Circuit found that a jury could conclude that age was a motivating factor in Trout's replacement.

At trial, the burden of proof shifts to the Board of Education to show that it would have non-renewed Trout's employment even if age was not a factor. In fact, the district claimed that Trout was not rehired because of safety reasons: he drove a bus full of children the wrong way on a highway entrance ramp, and allegedly pulled out in front of another driver. Trout explained by claiming the ramp's signs were mismarked, and the other driver was mistaken. Even if true, the EEOC offered evidence that (1) not all board members knew about all of these safety issues and (2) the district had not removed younger drivers for similar concerns.

Look for the result in next year's "In the Rearview Mirror."

__________________________________
Peggy Burns is in-house counsel to Adams Twelve Five Star Schools in Colorado. She is also the editor of Legal Routes , and the author of the video program Confidential Records: Training for School Bus Drivers . For ordering information, call her at 888/604-6141.

* This article first appeared in the January 2004 edition of School Transportation News