Open Source Content Management

Just a Little Malice Can Go a Long Way to Defeat Management’s Personnel Decisions (from January 2011 issue of Legal Routes)

Retaliation, intentional infliction of emotional distress, discrimination, hostile environment. . . .These are all claims that an employee may use to try to get a court to reverse a termination action. An Ohio mechanic was able to put forth just enough evidence that the district’s manager of operations and support services, and its chief financial officer “had it in” for him, to keep the Wickliffe School District entangled in court to argue about his termination.

The facts
Valentino had been a bus mechanic with the school district for 30 years. The mechanic and his transportation supervisor (Olenchick) did not have a good professional relationship, so, when the mechanic had concerns over the safety of the school buses, he approached Forinash, the operations manager, with the issues.
His “stressful” work environment led Valentino to seek medical help, and he took off considerable time under the Family Medical Leave Act (FMLA). When his absences continued even after the doctor certified him to return to full duties, Forinash placed him on paid administrative leave pending a psychiatric examination.
While Valentino was on leave, the state inspected the district’s 8 buses. The district was ready for the inspection, had checked them over the night before, but, nevertheless, all 8 buses failed inspection due to numerous wiring and electrical problems. With the specter of criminal mischief a possibility, the district turned the matter over to the police for investigation. Valentino and others having access to the buses were interviewed, but the police investigation was inconclusive.
Despite the psychiatrist’s determination that Valentino was capable of working and performing his duties, the mechanic was often absent, and performed in ways that violated a letter of expectations prepared by Haffey, the chief financial officer. Because of the previous occurrences of absenteeism, the district hired a private investigator to follow the mechanic on a day that he applied to use intermittent FMLA leave, allegedly to care for his sick son. The investigator’s report indicated that Valentino’s son, in fact, went to school, and that Valentino was seen working on a vehicle.
The district terminated Valentino’s employment. The mechanic sued the district, Olenchick, Forinash and Haffey, alleging wrongful discharge. The three individual defendants filed motions for summary judgment, seeking immunity from the claims filed against them as individuals. The trial court refused, and the two supervisors appealed.

The evidence and decision
Valentino’s evidence was based on the supervisors’ actions relating to the failed bus inspection, the fact that they made him see a psychiatrist, reprimanded him for raising safety issues, and “illegitimately terminated him for taking a day off to attend to his special needs son.” He further claimed that these acts were done despite the supervisors’ knowledge of “his anxiety, depression and fragile emotional state.” Statutory immunity for individuals is unavailable if they acted with “malice,” and “intentional infliction of emotional distress” is a separate legal claim.
The appellate court agreed with the trial court that Valentino had demonstrated “some (though little) evidence” to support his claims regarding his complaining about safety issues and their responses to his absence to take care of his son. There was literally a sprinkling of specific examples of actions each of the three supervisors took to support a finding of malice and intentional infliction of emotional distress.
One judge commented that there was evidence that Olenchick instigated the criminal investigation “to cover his own responsibility for the buses’ failure to pass inspection.” An arbitrator had already found that Valentino had not been terminated for just cause based on supervisors’ claims that he had abused personal leave, because his use of leave did not violate the employment contract.
These facts were enough for the appellate court to find it had no choice but to uphold the trial court’s denial of the motions for summary judgment.

The lessons
When an employee can find at least some foundation for an inference that his supervisors have acted in bad faith, the burden to show otherwise will land in one legal fashion or another on the supervisors. Here are some good practices to help in that situation:
•In the first place, all supervisors should be careful about stray remarks and casual statements that can come back to haunt you.
•Have thorough documentation of your objective, business-related reasons for all adverse employment determinations.
•Give employees a fair chance to tell their sides of the story at every step along the way.
•Know “when to hold ‘em and when to fold ‘em.” An arbitrator’s opinion that an employee has not been terminated for just cause should lead to some institutional soul searching to review the steps that have been taken up to the point of the negative employment action, the real motives of supervisors involved, and a determination if there are any options for compromise.

If You Were “Judge Peggy,” Would You Be Convinced?

In Los Angeles U.S.D. Personnel Commission v. Brynjolfsson, 2008 WL 4277464 (Cal.App. Dist.), an unpublished decision, a 25-year veteran mechanic, appealed his termination from his job. He had installed the wrong size brake chamber on the left rear wheel of a school bus. As a result, the bus failed an inspection by the California Highway Patrol before being returned to service.

The facts
The mechanic testified that he had presented the repair order for the bus to the parts storekeeper, and had been given the brake chamber at issue. He noticed that it was a different color, shape and size than others on the bus, but was assured by the parts storekeeper that it was the correct part. The parts storekeeper denied in court that he had given any such assurances.

The evidence
Make no mistake about it – I wouldn’t know a brake chamber from a steering wheel. Nevertheless, the testimony would have convinced me that an experienced mechanic should have been held accountable for this kind of mistake. I’m guessing you’re thinking that a red flag should have been raised once the mechanic received a part that was different in color, shape and size.
The commissioner who had originally heard the evidence prior to the court appeal in the Brynjolfsson case was skeptical about the school district’s argument in support of termination of the mechanic. He stated that he had “a serious problem with the claim that no one else within the department including the parts department has any responsibility to make sure that a mechanic is furnished with the proper parts. . .I think everybody in the department has a responsibility to make sure things are done right. . .[W]hether they are given the tools to do that is another issue; there appeared to be some problems with the procedures in place for getting parts.”

The decision
The commissioner concluded by saying that he had difficulty upholding the district’s decision to terminate in light of the district’s deficiencies in supervising both the mechanics and the parts department.

The lessons
As transportation professionals, you may have a sense of exactly what should have happened here, and how the problem could have been prevented. But lay hearing officers and judges don’t know that. So you have to be prepared to “take them by the hand” and lead them where you want them to go if litigation results. It helps to have a policy or procedures that mechanics and parts people can follow – perhaps a checklist – that would, at least, impress the decision-maker that you’ve done your part. It may still come down to a “he said, she said” debate, but I’d urge you to think about how you would put your best foot forward.
And, experts tell me that this is an example of the importance of on-going, well-documented, training for both technicians and parts people. In addition, I now know that although there is a “typical school bus” that uses a “typical” spring brake chamber, each bus manufacturer may use different brake chambers for every application.
One more point learned from the experts: Technicians should be trained to recognize that what's already on the bus may not be correct. You can’t assume the person before you has installed the right part. The experienced mechanic in this California case should have had this kind of knowledge.
And, what could have happened here in lieu of termination where, though a serious mistake occurred, no injury resulted? If implementation of supervision and discipline has been lax, a director might have to begin progressive discipline rather than jump to termination of a veteran employee with acceptable past performance. In addition, such a director would want to engage in a thorough audit of the training program and parts delivery processes to ensure this sort of situation did not reoccur.

An item posted by Marisa Weisinger on the Special Needs Transportation group wall, in connection with Mark Hinson's and my recent Executive Briefing at TSD about Managing Risks in the Cyberworld, reminded me of FERPA concerns involved in social networking. All school transportation professionals should remember that blogs, social networking sites, emails and other technological tools must not be used in ways that identify improperly students on your buses. This is true whether or not you refer to them by name, if it's reasonable to believe that others will realize who you're talking about. Be careful, always, about violating confidentiality laws.
Peggy Burns