DISCRIMINATION ON THE BASIS OF DISABILITY IN THE WORKPLACE Editor’s Note: Readers should be aware of significant changes in
the Americans with Disabilities Act that became effective on Jan. 1, 2009. Tese changes were explained by Peggy Burns in a June 2009 STN article. A driver alleged both race and age discrimination, and retalia-
tion, in Armbrester v. Talladega City Board of Education (11th Cir., May 2009). When a black, female driver over the age of 40 hurt her neck, her supervisor helped her with the hood of her bus so she could complete her pre-trip inspections. When the supervi- sor concluded that the assistance created a safety hazard, the supervisor stopped, and the driver took paid sick leave until she could return to the physical responsibilities of her job. After her return, she received various disciplinary consequences for driv- ing fast through a school parking lot and because she commit- ted other unsafe practices. Ultimately, she was terminated. Her discrimination claims were based on the refusal of the district to continue to accommodate her neck injury, and the imposition of consequences for the unsafe actions. Te court found that the board had submitted legitimate reasons for each of her actions and held that the termination was neither retaliatory nor dis- criminatory, but was based on the continuation of unsafe driving practices, refusal to follow the directions of her supervisors, and jeopardizing the safety and timely arrival of her students. In Mungia v. Judson Independent School District (Texas, Oct.
2009), a mechanic tried to convince the court that his having to explain a demotion to co-workers constituted harassment on the basis of disability. Mungia, blind in one eye, drove buses without passengers for 19 years. He contended that the school district, despite knowing of his disability, required him to get school bus certification, which he could not do. Te court held that alleged humiliation and embarrassment, such as Mungia asserted, was not harassment. In addition, he was paid to be a bus monitor at the same salary he had made as a mechanic. Te court refused to find that the mechanic was entitled to an order preventing his demotion.
DISCRIMINATION ON THE BASIS OF RACE IN THE WORKPLACE A number of employees banded together to bring suit in Jones
v. First Student, Inc., (Ill., Sept. 2009). Tey pointed to the em- ployer’s tolerance of harassment by co-workers and to several employment decisions that were adverse to their interests. Te case was allowed to go forward where facts were in dispute as to whether the bus company had actual notice of serious harass- ment by co-workers. And the claims of one employee who felt she was treated differently than Caucasian bus drivers when she left a student on a bus unattended, and another who felt she was passed over for a promotion in favor of a less qualified Caucasian candidate, will likely depend upon whether First Student has rel- evant documentation of decisions.
WAGE AND HOURS ISSUES UNDER THE FAIR LABOR STANDARDS ACT One hundred and nine school bus drivers opted into Almy
v. Kickert School Bus Line, Inc. (N.D. and Ill., Sept. 2009), a suit against a bus contractor. Kickert urged the court to apply the “motor carrier exemption” to the FLSA to a school bus operation that maintains interstate operations. Te court agreed that the exemption would apply to eliminate the necessity of overtime pay for weeks in which the drivers exceeded 40 hours if their actions involved interstate commerce. Tat decision would be made by the court on the basis of receipt of additional informa- tion. School bus contractors should note that courts in the 2nd and 11th circuits have reached similar decisions on the issue of application of the “motor carrier exemption to school bus op- erations,” and that the Kickert case appears to depart from an earlier decision from a different Illinois court. Te ultimate out- come of such cases will vary according to the specific facts of the case, and contractors should check with their own legal counsel in specific instances.
“Quirky records” prevented a contractor’s success in Hoffman
v. First Student (Md., June 2009). Te court couldn’t determine if the drivers who had sued had been properly paid for charter routes. At issue was whether the drivers actually crossed state lines regularly (so as to be exempt from overtime), and wheth- er the company had properly calculated overtime when it was paid. Te U.S. Department of Labor has specific record-keeping requirements. Readers are urged to check out useful DOL fact sheets at
www.dol.gov. n
Peggy Burns is an attorney and consultant, and owner of Educa- tion Compliance Group, Inc. (
www.educationcompliancegroup. com.) She is the editor of Legal Routes, and developer of four video training programs for school bus drivers, “Te Road to Compliance for Special Needs Drivers,” “Putting the Brakes on Ha- rassment,” “Steering Clear of Liability,” and “Confidential Records” and co-author of School Bus Stops: A Safety Guide for Transport- ers. Peggy can be reached at (888) 604-6141, and by e-mail to
ecginc@qwestoffice.net.
www.stnonline.com 41
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