ANALYSIS In tough economic times, discouraged adults can become disgruntled workers. It’s no
surprise, therefore, that Part I of this year’s “In the Rearview Mirror” reflects an increased number of claims by employees who fight back, sometimes on rather feeble bases. We hope that learning about the context in which employment cases arise will help you ward off such claims in your own operations. Part II, in February, will focus on student- based issues.
In the Rearview Mirror:
2009 in Review, Part I By Peggy A. Burns, Esq.
HIRING AND FIRING, AND STEPS IN BETWEEN In Ignatti v. Webster (N.Y., April 2009), a driver participated as a witness in a co-work-
er’s EEOC sexual harassment charge against her supervisor. When the driver was termi- nated after numerous conduct violations and related discipline over a period of eight years, he alleged that the real basis for the termination was retaliation because he had been a witness. Te court granted summary judgment in favor of the district because Ignatti could not prove that the district was aware of his involvement in the co-worker’s EEOC proceeding prior to his termination, or that there was any relationship between his having been a witness and his termination. How much due process is due an employee was the central question in Desparois v.
Perrysburg Exempted Village School District (Ohio, Oct. 2009). An employer must “jump” through several legal “hoops” for an employee who reasonably expects that his job will continue prior to impacting that job. An at-will employee is not entitled to receive such process. Here, a bus driver was terminated after allegedly engaging in inappropriate contact with students. Te driver sued, claiming the district had not provided sufficient legal process. Te court held that the driver received sufficient due process because the district notified him to appear at a pre-disciplinary hearing, made the evidence against him available to him at that hearing (although not before), and then gave him further opportunity to object to his termination by way of a post-termination hearing on his grievance. Because these procedures were adequate, the court did not have to decide if, in fact, the driver was even entitled to due process. In Simmons v. Coosa County Board of Education, “sufficient due process” was also
the answer to the question to whether plaintiffs were provided with appropriate pro- cedures. Te district reduced the work hours of aides who were on “temporary work contracts” that assured them of additional hours of work when students with disabili- ties needed extra assistance. Because the aides could not have reasonably expected that the additional work was guaranteed by the “as long as needed” wording of the contracts, it was sufficient for the district to notify them of cancellation of the extra hours rather than also provide an opportunity for a hearing prior to returning to the aides’ basic contract.
RETALIATION CLAIMS ON THE DOCKET In January, the U.S. Supreme Court ruled that Title VII of the Civil Rights Act of 1964
prohibits retaliation against employees who cooperate in a company’s internal inves- tigations of alleged harassment or discrimination. Although Crawford v. Metropolitan Government of Nashville and Davidson County, Tenn. rejected the argument that retali- ation would become an “easy charge” for certain employees, this decision may signal an increase in worker retaliation claims. However, a New York court reminds us that only a case which sufficiently demon-
strates an adverse employment action caused by an employee’s undertaking a “pro- tected activity” will be successful in proving retaliation. In Brummell v. Webster Central School District (N.Y., Jan. 2009), a head driver was unhappy about many aspects of her position: she was not full-time, her co-workers behaved badly, the transportation man- ager was insulting. She asked for a new supervisor, and the district responded with an offer of a demotion or resignation. Although the court noted that an employee does not need to use “legal terms or buzzwords” for complaints to become retaliation claims under the law, Brummell had not tied her complaints to gender or any other protected characteristic. Terefore, she had no legal basis for her lawsuit.
40 School Transportation News Magazine January 2010
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