Graham v. Jacksonville Coach Co., Civ. A. No. 81-999-CIV-J-M.

• Decision Date: 22 August 1983
• Docket Number: Civ. A. No. 81-999-CIV-J-M.
• Citation: 568 F. Supp. 1575
• Parties: Julius B. GRAHAM, Plaintiff, v. JACKSONVILLE COACH COMPANY and Jacksonville Transportation Authority, Defendants.
• Court: U.S. District Court — Middle District of Florida

568 F. Supp. 1575

Julius B. GRAHAM, Plaintiff, v. JACKSONVILLE COACH COMPANY and Jacksonville Transportation Authority, Defendants.

Civ. A. No. 81-999-CIV-J-M.

United States District Court, M.D. Florida, Jacksonville Division.

August 22, 1983.

Harrel T. Buggs, Jacksonville, Fla., for plaintiff.

Michael J. Dewberry, and K. Alexandra Krueger, Jacksonville, Fla., for defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

MELTON, District Judge.

Plaintiff Julius B. Graham brought this action against defendants Jacksonville Coach Company ("JCC") and Jacksonville Transportation Authority ("JTA") after he was discharged from his employment allegedly because of his race in violation of 42 U.S.C. §§ 1981, 1983 (1976), and 42 U.S.C. § 2000e-2(a) (1976). Plaintiff seeks, inter alia, an award of back pay with interest, costs, attorney's fees and reinstatement to his former position. A nonjury trial of this action was held on February 22-23, 1983. After reviewing the record herein, and after hearing argument by counsel for the respective parties, the Court makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

1. Plaintiff, a black citizen of the United States, was employed by defendant JCC as a bus driver from March 1973 until June 9, 1980. Plaintiff was one of seventeen drivers hired by JCC in 1973. At all times material to the issues in this case, plaintiff was a member of the Amalgamated Transit Union Local No. 1197 ("Union"), which had a collective bargaining agreement with JCC.

2. Defendant JCC is a corporation licensed to do business in the state of Florida, and defendant JTA is an independent state agency of the state of Florida authorized to operate the mass transit system in the city of Jacksonville, Florida, of which plaintiff was a motor bus operator.

3. At all times material to the issues in this case, JCC used a system for recording accidents or incidents involving the operation of its bus fleet. The initial notification of an accident is given to a dispatcher over the radio by the bus driver, giving the location of the accident and the description of any damage or injuries. The dispatcher then calls an investigator who proceeds to the scene of the accident. The driver will subsequently complete an accident report and forward it to the Superintendent of Transportation. After the facts concerning the accident are collected from sources such as the investigator's report and the police officer's report, the accident is coded either preventable or nonpreventable. At this point, the Superintendent of Transportation prepares a 1506 form and codes the accident as either preventable or nonpreventable, a coding which is reflected on the form itself, along with a notation of whatever discipline is administered. A copy of the form is kept in the driver's personnel file. In addition to the individual 1506 forms for the driver's accidents, each driver has an accident record card that summarizes the date of each accident of the driver, with information concerning the type of accident, whether it was coded preventable or nonpreventable, and the discipline administered. A driver has the right under the collective bargaining agreement to challenge the coding of an accident as preventable through the contractual grievance mechanism.

4. JCC has established a set of rules for the safe operation of the bus system, which is compiled in an employee handbook. JCC's employee handbook defines a preventable accident as

any accident involving a company vehicle which results in property damage and/or personal injury, regardless of who was injured, what property was damaged, to what extent, or where it occurred, in which the employee in question failed to exercise every possible precaution to prevent the accident.

Defendants' Exhibit No. 20 at 21-22 (emphasis in original).

5. JCC also has a rule, contained in the employee handbook, regarding rear-end collisions. This rule provides that

operators must maintain a safe braking distance behind the vehicle in front of the bus. There is no excuse for a collision with the vehicle ahead.

Id. at 16 (emphasis in original). With regard to brakes, the employee handbook contains a rule that "operators must test brakes before leaving the property, as this will prevent many serious accidents. An operator must be familiar with the mechanical limitations of his bus and drive within these limits." Id. at 13-14.

6. The safe operation of the buses is JCC's primary goal. During the last fifteen years, JCC has been either first or second, in cities of comparable size, for safe operation of buses. It has won the National Safety Council Award for the last six years in a row.

7. During his employment with JCC, plaintiff had nine preventable accidents, five of which were rear-end collisions.

8. After the eighth preventable accident, which occurred on April 9, 1979, John Johnston, the Superintendent of Transportation, decided to terminate plaintiff's employment because of his poor driving record. At that point, plaintiff had had eight preventable accidents in six years, including four rear-end collisions. When Johnston brought plaintiff in to inform him of the termination, however, plaintiff pleaded with Johnston not to discharge him and described some personal problems he was having with his wife and children. As a result of plaintiff's pleas, Johnston relented and agreed not to terminate plaintiff's employment. Plaintiff, however, was placed on 120-days probation, during which time any accident that was coded preventable would result in his discharge; further, Johnston told plaintiff that if he ever had another rear-end collision, he would not be able to help plaintiff.

9. Although he had a right to do so under the provisions of the collective bargaining agreement, plaintiff never filed a grievance challenging the coding or level of discipline rendered as a result of any of his first eight preventable accidents.

10. On May 7, 1980, plaintiff had his ninth preventable accident and fifth rear-end collision. Before any coding or disciplinary action was taken by JCC on this accident, the Union went on strike. The strike began on May 12, 1980, and extended through May 23, 1980. Plaintiff worked during the period from Monday, May 26, 1980, through Friday, May 30, 1980, and then went on a one-week vacation, returning to work Monday morning, June 9, 1980.

11. Article X of the collective bargaining agreement between the Union and JCC provides:

No employee shall be called upon to account for any offense against the rules of the Company later than ten (10) days after the alleged offense has been made known to the officers of the Company and disciplinary action must be taken within the next succeeding ten (10) days, except in the case of accidents when the Company shall have the election to defer determination of possible Disciplinary action until after the settlement of any and all claims arising out of such accidents for a period not to exceed thirty (30) days. After the expiration of the time limits set forth above the penalty for such alleged offense shall be waived by the Company provided the alleged offender shall have been available during the time limits set forth above.

Defendants' Exhibit No. 21 at 11-12.

12. JCC followed a policy of not contacting drivers while they were on vacation. No attempt was made to locate and contact plaintiff while he was on vacation. Leo Hall, JCC's resident manager at the time in question, did not feel that plaintiff was available under the terms of article X during the eleven days the Union was on strike and during plaintiff's one-week vacation.

13. As a result of his discharge on June 9, 1980, plaintiff filed a formal grievance on June 11, 1980, pursuant to the collective bargaining agreement. According to plaintiff's statement in his grievance, he felt he was discriminated against because he knew of "no other driver being discharged and/or terminated using accident data covering this length of time." Pursuant to the provisions of the collective bargaining agreement, the discipline and grievance were reviewed by Hall. On June 19, 1980, Hall, in a letter to Michael Graycar, the president of the Union, issued his decision denying the grievance. Finally, the matter was referred to Joseph Poquette, the president of JCC, who held a final appeals hearing in his office on July 3, 1980. Poquette rendered his decision on July 7, 1980, upholding plaintiff's discharge and the denial of the grievance.

14. Thereafter, the union membership voted to take plaintiff's grievance to arbitration pursuant to the provisions of the collective bargaining agreement. According to Graycar, the basis of the action taken by the union membership was that plaintiff had survived the 120-day probation entered as a result of the April 9, 1979, accident, and therefore should have received no discipline for the May 7, 1980, accident.

15. The Union and plaintiff retained present counsel to represent their interests in the arbitration. The initial arbitration hearing was held in Jacksonville on March 5, 1981. At this hearing, plaintiff and the Union asserted for the first time that plaintiff's discharge was improper because it was effected thirty-three days after his last accident, which they contended violated article X of the collective bargaining agreement.

16. The arbitrator issued his decision on June 19, 1981, concluding that the discharge of the plaintiff was for just cause due to his extremely poor driving record and that the Union and plaintiff had asserted the article X violation issue too late. Therefore, the discharge was sustained.

17. Plaintiff was not aware of the potential noncompliance by JCC with article X until after he retained counsel a few months after his discharge. Graycar, the Union president, overlooked the potential application of article X to plaintiff's case until it was brought up by plaintiff's counsel, even though Graycar was familiar...