Law & Compliance
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.
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.
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.
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 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.
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 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.
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.
What are the latest changes or challenges to federal law when it comes to pupil transportation? Is your operation in compliance? Use this group as a clearinghouse for vetting ideas and to learn more about what you need to know … and how to be proactive rather than reactive.
What are your current challenges to complying with federal law when it comes to pupil transportation?
For the most part there are ... times 50 for the states, though many adopt similar regulations per the U.S. National School Transportation Specifications and Procedures that is updated every 5 years. So what you'll see is a lot of customization. And many of the state standards are just that, so school districts have leeway to build on minimum requirements. The national specs call for pre-service and in-service training that consists of: - pre/post trip - school bus evacuations (for all eligible students and separately for special needs) - loading/unloading - reduced ilding - cell phone/electronic communications restrictions in accordance with state and local laws - road rage - distracted driving - aggressive driving - blood borne pathogens/first aide/CPR - bullying on the bus - sexual harassment prevention - drug/alcohol compliance and pre-, post-crash testing, random testing, etc. - emergency and disaster preparedness - confidential records - requirements for reporting inappropriate behavior of adults, including the bus aide - school bus hostage incidents - personal protective equipment - CSRSs - student management - RR crossings
If there is no law, regulation, or district policy that requires an air conditioned bus for everyone, then you are obligated to provide A/C to a student with a disability only if he or she needs the cooling as a result of the disabling condition. Even if you are a provided with a doctor's note, you can have the parent complete a release form to enable you to talk with the doctor and (1) determine the basis for the note - what is the real need and why? and (2) discuss with the doctor the inability of the bus to reach the stated temperature and (3) discuss options for transporting the child in a safe and appropriate manner.
The National Highway Traffic Safety Administration (NHTSA) has a fairly succinct discussion of this issue on its website at: http://www.nhtsa.gov/people/injury/buses/pub/numseat.hmp.html Individual states may also have regulations or guidance on the subject, too. In Florida, for instance, state Board of Education rules require that drivers must ensure exits and aisles are not blocked. As stated by NHTSA, optimal passenger crash protection requires that students be within the confines of the padded seating envelope. For these reasons, most local school districts route buses so that there are no more than two larger middle or high school students per seat, and work to correct overloaded conditions when they are verified. While state statutes allow students to be seated up to the rated seating capacity of the bus (three per 39-inch bench seat), they also state that students may be transported in excess of that number only in emergency circumstances, during which the bus must operate at reduced speed. The statute also requires prompt relief through rerouting or additional buses. This statute provides districts at least temporary flexibility to ensure students' immediate safety. To illustrate, at the beginning of the school year, when student bus loads can't always be accurately predicted, districts sometimes have to transport more students on some buses than they'd like. Districts correctly surmise that the students are safer on the bus and in school than left behind at the bus stop. Maintaining proper student loads is a complex balancing act that districts struggle with every day, especially in this day and age of tight budgets and having to do more with less. Thanks for airing the topic. Charlie Hood
Here's some information that may give you some ideas about the issue. The degree of risk involved and the commitments entities have made regarding supervision are key factors in determining responsibilities for bus stop supervision. A Mississippi school district anticipated the need to assign security guards to a bus stop where sixty students who had been previously expelled for violent behavior or commission of felonies were picked up to travel to an alternative school. (Doe ex rel. Doe v. Wright Security Services, Inc. (950 So. 2d 1076 Miss.App., March 6, 2007.) In the past, fights had broken out at the bus stop which made the need for extra supervision very real. The guards’ responsibilities were spelled out, but a particular guard bent the rules and gave one student permission to use the restroom unescorted. While there, the student was sexually assaulted by another alternative school student known to be a particular troublemaker. He, too, had been allowed to leave the stop unescorted. The court found that the fact that the security company was hired by the school district committed the company to prevent foreseeable harm at the bus stop. District personnel had trained security company people to address the very circumstances that actually arose. The court found that there was enough evidence of possible breach to allow the case to proceed to trial. I do not know what happened next. I wouldn't be surprised if it settled out of court. Where a school district is expected to recognize that there is a likelihood of danger in the absence of strong supervision measures, the school district will have a duty to add that supervision. So, a big question to be answered in the question Ryan raises is whether the district had knowledge of likely harm, and a duty to prevent it. Peggy Burns