In the Rearview Mirror

February 1, 2008

A review of 2007 legal cases affecting school transportation

Part II

This segment of “In the Rearview Mirror” focuses on legal issues related to the employment context. Although the brief summaries below can seldom tell the “whole story,” school districts and transportation companies should note recurrent themes:

• When reasonable action would be likely to stop dangerous behavior by students, responsible personnel must take available steps.
• Supervisory personnel are responsible for implementation of federal rulesregarding wage and hours compliance and avoidance of discrimination — training is essential.
• Although complaints may not be sub- stantiated, when employee concerns are brought to the attention of super- visors, they must be investigated.
• Policies that support student safety must be communicated and enforced.

For more information about these cases and their lessons, contact Peggy Burns (page 51).

Intervention or Inaction by Responsible Personnel
Leroy-Hill v. New York City Dept. of Educ., (NY) 2007 WL 13468. A school bus escort’s certification was revoked for failure to take mandatory safety precautions or report her awareness of a special needs student’s possession of a knife on the bus.

In LaPage v. Evans, (NY) 830 N.Y.S. 2d 818, a student victim sued both the student who hurt him and the school district for injuries that occurred in a fight at the bus stop at the end of the school day. The court held that the school bus driver had no opportunity to intercede, and that the district was not liable for this post-exit event. As soon as the driver became aware that there could be a problem, he tried to call for help on his radio, but his transmission was blocked. He got off the bus, but the fight was so brief that there was nothing more for him to do. Neither student had any prior disciplinary history.

Fair Labor Standards Act
In an important 11th Circuit decision, Allen v. Board of Public Education for Bibb County (GA), the federal appellate court said that FLSA rules do not excuse an employer “merely because his business requires him to rely on subordinates and personal supervision is not possible.” Instead, boards of education and bus companies are charged with knowledge of their employees’ overtime entitlement when people in middle and upper management positions know or should know overtime is being worked. Examples of non-compliance by middle-level managers at the school district included discouraging drivers and monitors from accurate record-keeping.

Workplace Discrimination/Harassment
In Gonima v. Manatee County School Bd. (FL) 2007 WL 1222577, the court found that national origin discrimination against a “trades helper” in a school district’s transportation department was severe and pervasive. Some of the actions which constituted the basis for this claim were attributable to department supervisory personnel.

Clifford v. Oak Ridge City Schools (TN) 2007 WL 2471745 was a driver’s complaint that she had been subjected to sexual harassment by a driver trainer. The court held that school district administration investigated and responded properly when they learned of the concern. Because the district took prompt and appropriate corrective action, the court granted summary judgment in the district’s favor.

A court rejected a transportation secretary’s discrimination charge in Pitts v. Houston County Board of Education (GA) 2007 WL 761864. The African-American woman filed a charge of discriminatory termination based on race and gender. She had been fired for failure to process essential paperwork, resulting in economic loss to the district. Where she attempted to show she had been treated differently than others in similar situations, she failed because her “comparable” scenarios were not, in fact, sufficiently like her own to demonstrate discriminatory treatment.

In Yuknis v. First Student, Inc., 2007 WL 912121, the 7th Circuit Court of Appeals drew the line “between mere offense on the one hand and serious harassment on the other.” Part-time school bus driver Yuknis complained repeatedly about the offensive co-worker behavior she witnessed or heard about, and she was fired for undermining internal relations at the facility and damaging the credibility of the facility’s management. The court held that the couple of remarks to which the driver had been subjected fell far short of an actionable hostile environment case.

In Simon v. Bellevue School District (WA), the court affirmed that employers are not required to excuse the non-performance of an essential job function as an accommodation. For example, here, a consistently tardy driver was unqualified for the job of school bus driver.

Policy Issues
Matter of Thibodeau v. Northeastern Clinton Central School Board of Education (NY) 833 N.Y.S. 2d 204 demonstrates the value of strong policy statements in employment actions. A driver snapped a 6th grade girl’s bra strap while she was on the bus, and grabbed the girl in a headlock and ruffled her hair with a fist. When her mother reported the incidents to the school principal, Thibodeau took the girl off the bus to intimidate her and to urge her to minimize the report with administration. The district’s termination was upheld because of a clearly communicated no-contact policy.

Doe ex rel. Doe v. Wright Security Services, Inc., (Miss.) 950 So.2d 1076, arose when the district’s policies regarding bus stop supervision were not enforced although the risk of harm at that particular stop was high. Security guards were not to let students leave the bus stop unescorted and were to remain at the stop at the end of the day until the last child had been picked up. Nevertheless, a guard gave permission to “Jim Doe” to go unescorted to the restroom. While there, he was sexually assaulted by another alternative school student known to be a particular troublemaker. That student, too, had been allowed to leave the stop unescorted in direct violation of the rules. The court found that there was enough evidence of a breach of legal duty to permit Jim Doe’s case against Wright Security Company to proceed to trial.

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