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Jones v. First Student

September 9, 2009

LISA JONES, ET AL., PLAINTIFFS,
v.
FIRST STUDENT, INC., DEFENDANT.



The opinion of the court was delivered by: Judge Joan B. Gottschall

MEMORANDUM OPINION & ORDER

Plaintiffs Lisa Jones, Terry Beasley, Sr., Christina Brooks, Michael D Bryant, Dominique Davis, Steven Forthenberry, Robert M Hoskins, and Dora Red have filed a four-count complaint alleging racial discrimination under Title VII and 42 U.S.C. § 1981 against Defendant First Student, Inc. ("FSI"). Count I is a collective count brought on behalf of Jones, Beasley, Bryant, Davis, Forthenberry, and Red, alleging that FSI permitted a hostile work environment. Count II is an unlawful discharge claim specific to Brooks. Count III is an unlawful discharge claim specific to Hoskins. Count IV is an unlawful retaliation claim specific to Jones and Forthenberry.

FSI's motion is granted as to Count III and Count IV to the extent that Count IV relates to attendance warnings. FSI's motion for summary judgment is denied as to Count I and the remainder of Count IV. FSI's motion for summary judgment is denied as to Count II, subject to the possibility for a motion for reconsideration as described in the text below.

I. BACKGROUND*fn1

The plaintiffs are current and former employees of FSI. FSI provides busing services to school districts throughout the United States, including at Danville, Illinois, where the plaintiffs worked and where the events underlying this action occurred. FSI is a separate entity from the schools. Red worked for FSI as a bus monitor or bus aid (a person who rides on school buses and assists the driver), and the other plaintiffs were employed for FSI as bus drivers. All the plaintiffs are African American except for Hoskins, who is Caucasian.

The plaintiffs reference several events that they claim constitute a racially hostile working environment (Count I), and which also provide a background to the plaintiffs' individual claims (Counts II--IV). These general facts will be enumerated first; then specific facts related to the particular plaintiffs' claims of discrimination and retaliation will be considered.

A. Racially Incendiary Emails and Other Conduct Prior to 2007

The plaintiffs' complaints stretch back to November 8 and November 27, 2005, when Diana Chord sent two racially charged emails to FSI employees. Chord is a Caucasian bus driver employed with FSI. The first email includes what appears to be a white baby chicken ("chick") stating to black chicks, "what's up my nigga's??" The second involves a photograph of several African Americans dressed in medical scrubs and surrounding a Caucasian man lying on a stretcher and dressed in Ku Klux Klan regalia, including a cone-shaped hat; the caption reads, "I could be wrong, but judging by his hat, this guy just ain't gonna make it!!!!" Chord sent the emails from her personal email account to the personal email accounts of several other FSI bus drivers, as well as to the FSI email address of Terry Kegley; Kegley was FSI's Contract Manager, and he supervised all the bus drivers and bus monitors in Danville. School officials also learned of these emails, and inquired of Kegley regarding how FSI was addressing the situation. The plaintiffs did not receive the emails from Chord, but were made aware of them by co-workers.

As a result of these emails, Chord was suspended for three days, although the plaintiffs were not aware of this suspension. Ron Howard, the senior regional vice president of FSI for the region that includes Danville, addressed FSI Danville employees after the emails were sent. The parties dispute what Howard said. Howard contends that he stated that the emails violated FSI's non-discrimination policy and that acting in this manner could result in discipline, including termination. The plaintiffs contend that Howard only briefly addressed FSI's policy against racial harassment and did not address the emails specifically. Several of the plaintiffs then contacted a lawyer who wrote to FSI on their behalf regarding the emails; FSI responded to the letter in writing, stating that it was looking into the matter.

In June of 2006, and May of 2007, another Caucasian co-worker, Kathleen Faber, sent racially incendiary emails to co-workers through her private email account, but these emails were never reported to FSI. In January of 2007, Chord and another Caucasian co-worker, Sheryl Witsman, were heard by plaintiffs speaking on CB radios in the school buses; Chord and Witsman were speaking in a manner that imitated an African-American speaker. Again, this was not reported to FSI management.

B. Termination of Hoskins in April of 2006

Plaintiff Hoskins was terminated in April of 2006. Hoskins was terminated because he failed an annual medical examination which state law requires for all bus drivers. The stated reasons for Hoskin's termination were obesity and consumption of a prescribed opiate. Hoskins contends that his termination was in response to his complaints about the emails sent by Chord; Hoskins forwarded emails sent by Chord to FSI's Safety Coordinator Bertha Crist in December of 2005, asking if something could be done regarding Chord's insensitive behavior. Hoskins maintains that after this inquiry, Kegley acted less friendly toward him, and Kegley asked Hoskins if he had forwarded the Chord emails to school officials. Hoskins also argues that his medical review in April of 2006 was unusual because it was overseen by Kegley, whereas it is normally overseen by Crist. Hoskins finally claims that he was medically approved two years prior, in 2004, even though he contends that he was taking a stronger pain killer at that time, and he claims that his personal doctor submitted a letter on his behalf in April of 2006 stating that he was eligible to drive while taking the opiate, though the letter is not in the record.

C. Termination of Brooks on February 26, 2007

Brooks was terminated on February 26, 2007. Brooks was employed as a bus driver, and was terminated for violating an FSI policy prohibiting drivers from leaving children on a bus "unattended." The policy states that a driver who leaves a child on a bus unattended will be subject to immediate termination. A bus is unattended if the driver walks away from the bus; merely stepping off the bus is not a violation. Brooks signed an employee receipt form which reiterates that if a child is left unattended on the bus, termination will result.*fn2 On the date in question, Brooks left a student on her bus and briefly entered a school building. Brooks admits she violated the written policy, but contends that it was not equally applied, and that Caucasian drivers were not terminated for violating the same policy.

D. Derogatory Statement and Gesture by Witsman, Cunningham, and Chord on February 26, 2007

On the date of Brooks' termination, the plaintiffs assert that Jones, Beasley, Bryant, Davis, Forthenberry, and Red witnessed Witsman, Chord, and Caucasian co-worker Wayne Cunningham, high fiving each other, hugging each other, and stating "One [N-word]*fn3 down, more to go." The plaintiffs contend that Witsman, Cunningham, and Chord also ran a finger across their throats as they made the derogatory statement. Jones and Forthenberry claim to have reported some or all of this conduct to Kegley. Kegley responded that he would take care of the problem, but the plaintiffs were aware of no action taken by Kegley. The plaintiffs did not report the derogatory statement and gesture to other member of FSI management.

FSI disputes nearly all of these facts. FSI points to inconsistencies between the plaintiffs' testimony as to whether all of the plaintiffs heard and observed Witsman, Cunningham, and Chord each making the derogatory statement and gesture, as well as testimony from Witsman, Cunningham, and Chord that they did not make such a statement or make such a gesture. FSI further disputes that Jones told Kegley about the physical gesture and the derogatory statement.

FSI has a policy regarding the reporting of harassment. Employees may report complaints to several different channels within FSI, including to their manager (in this case, Kegley). If they are uncomfortable doing so, they may report complaints to human resources representatives. If employees are dissatisfied with the actions taken by the person they first contact, they may take an administrative appeal through a dispute resolution procedure. Employees can also raise complaints directly with Howard, who oversaw the region where the plaintiffs were employed.

E. Retaliation against Jones and Forthenberry

Jones and Forthenberry filed a complaint with the Illinois Department of Human Rights on June 4, 2007 in response to the aforementioned events. They now allege that they suffered retaliation from FSI as a result of filing that complaint. First, Jones and Forthenberry claim that they were denied staffing opportunities to train new drivers in the summer of 2007. Jones was told by Safety Coordinator Crist in approximately 2004 that staffing for the training of new bus drivers is based on seniority,*fn4 and that Jones was the most senior bus driver. Jones trained new drivers in the summer of 2006. However, in the summer of 2007, only Michael Ross trained new drivers; Ross was junior to both Jones and Forthenberry.

Second, Jones contends that she suffered retaliation in the form of written warnings she received for failing to attend work in 2008, once because of the funeral of a non-direct family member and once because of a foot surgery. Third, Jones contends that she was the victim of retaliation because she was not hired as a Safety Coordinator when Crist left that position in 2007. The position was offered instead to Ami Sprague, who had never driven a bus before. The parties dispute many facts related to the qualifications, requirements, and even the job description of this position, but some facts are agreed: The Safety Coordinator is responsible for, among other things, handling school bus accidents, including handling insurance and workers compensation claims arising out of accidents; training and hiring new drivers and aides; maintaining all drivers and aides files; and assisting drivers with student discipline issues. However, Jones contends that the main responsibility is to train drivers, and correspondingly, that it is a qualification and a requirement that the Safety Coordinator be able to drive a bus. FSI does not dispute that this is one aspect of the job, nor that the person hired, Ami Sprague, had never previously driven a bus, or even possessed the necessary license. FSI nevertheless contends that being able to drive the bus was not a prerequisite, and that Sprague could (and did) learn to drive the bus after she was hired. It is also agreed that Sprague came from outside FSI and had extensive background handling workers' compensation and insurance claims. FSI contends that it hired Sprague ...


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