Hill v. New York City Bd. of Educ.

• Citation: 808 F. Supp. 141
• Decision Date: 12 November 1992
• Docket Number: No. CV-87-3008.,CV-87-3008.
• Parties: Archibald HILL, Plaintiff, v. NEW YORK CITY BOARD OF EDUCATION, Bureau of Pupil Transportation, and Amboy Bus Company, Inc., Defendants.
• Court: U.S. District Court — Eastern District of New York

808 F. Supp. 141

Archibald HILL, Plaintiff, v. NEW YORK CITY BOARD OF EDUCATION, Bureau of Pupil Transportation, and Amboy Bus Company, Inc., Defendants.

No. CV-87-3008.

United States District Court, E.D. New York.

November 12, 1992.

Christopher R. Alger, Shearman & Sterling, New York City, for plaintiff.

Geoffrey A. Mort, Asst. Corp. Counsel, Law Dept., New York City, for Board of Educ.

Silverman, Collura & Churnis, New York City, for Amboy Bus Co., Inc.

MEMORANDUM AND ORDER

GLASSER, District Judge:

Plaintiff in this action, Archibald Hill, alleges employment discrimination and other violations of his federal civil rights. The defendants are the New York City Board of Education and a private bus company. Both defendants have moved for summary judgment on all causes of action, and plaintiff has cross-moved for partial summary judgment. For the reasons set forth below, defendants' motions are granted in part and denied in part, and plaintiff's motion is denied in full.

FACTS

The facts material to the disposition of these motions for summary judgment are not entirely undisputed. Plaintiff Hill is a black man of Jamaican origin. From March of 1980 until June 24, 1985, Hill was employed as a bus driver by defendant Amboy Bus Co., Inc. ("Amboy"). During that time, plaintiff also was certified by defendant New York City Board of Education (the "Board of Education" or the "Board"), Office of Pupil Transportation ("OPT"), to drive buses for children enrolled in New York City public schools. As a prerequisite for certification, the Board required plaintiff to complete a 20-hour training course — a requirement he had satisfied during previous employment — as well as periodic "refresher" courses. (Board's Rule 3(g) Statement in Support ¶ 2)

During the period relevant to this action, the only transportation services provided by defendant Amboy were those pursuant to a contract with the Board of Education. Among other provisions, that contract stated that:

If the Director of the OPT determines that an operator's competency falls below acceptable standards, ... the contractor, upon receiving written notice from the Director to that effect, shall not again employ this operator on any part of the work to be performed hereunder, or on any part of any work the contractor may perform for the Board of Education under any other contract.

(Exh. "D" of Defendant Amboy) Notwithstanding this contractual provision, Amboy retained sole power to hire and to terminate its employees; Amboy was also solely responsible for determinations regarding schedules, compensation, benefits, and work conditions of its employees. (Affidavit of Richard Langford ¶¶ 4-5) The Board simply reserved the right to decertify drivers and thereby bar them from working under transportation contracts executed between the Board and Amboy. (Id. ¶ 3)

In September of 1984, Amboy assigned plaintiff to a route that required him to transport "special needs" students to Public School 396 ("P.S. 396") in Brooklyn, New York. In preparation for this new assignment, plaintiff had to complete a one-hour training course concerning the transportation of special needs students. In addition, Board regulations required the presence of an OPT-certified "escort" or "matron" to work with the driver on routes that involved transporting these students. The scope of the escorts' duties — particularly as to whether they act under the direct authority of the driver — is a matter of dispute between the parties. In any event, Esperanza Torres, an Hispanic woman, was the escort from September of 1984 until February of 1985 on the bus route assigned to plaintiff Hill.

From the beginning of Hill's term on this route, one mentally handicapped student, 21-year-old Cecil Brimmage, proved exceptionally disruptive and violent: while riding the bus driven by plaintiff, Brimmage would hit his hands and head against the windows of the bus; he also would hit other students. For this reason, plaintiff and the escort began to restrain Brimmage by binding his hands together at the start of each morning's ride and would untie him on arrival at P.S. 396. Plaintiff maintains that escort Torres "initiated" this practice of binding Brimmage when she brought a segment of clothesline from her home and tied his hands together. Torres initially testified that she had secured permission from an employee of the Catholic Guardian Society Group Home (the "Group Home" — Cecil Brimmage's residence) to do "the best she could" to handle Brimmage. Nonetheless, Torres now insists — as adamantly as plaintiff denies — that she began to tie Cecil Brimmage's hands only upon direct instruction from plaintiff to do so.

In February of 1985, Helen Collura, a white woman, replaced Torres as the escort on the plaintiff's bus. She too would tie Cecil Brimmage's hands together at the start of each morning; she too maintains that she did so only at plaintiff's direction. Neither the escorts nor plaintiff ever filed a written report concerning the problems they experienced in transporting Brimmage from the Group Home to P.S. 396; none of the three ever secured authorization from any representative of the OPT or Amboy to restrain the student in this manner.

On the morning of May 13, 1985, an escort who was substituting for Collura did not restrain Brimmage. Indeed, plaintiff himself states that this replacement escort "refused" to bind Brimmage. (Plaintiff's Rule 3(g) Statement in Support ¶ 14) Therefore, plaintiff undertook to tie Brimmage's hands — the sole occasion, he claims, on which he himself bound the student. When plaintiff arrived at P.S. 396, a school employee witnessed plaintiff untie Brimmage and informed the P.S. 396 principal who immediately complained of plaintiff's behavior to OPT. That same day, Amboy initiated a preliminary investigation into allegations of improper conduct by plaintiff and the escorts with respect to Cecil Brimmage. Two days later, Amboy held a hearing at which it decided to suspend plaintiff, Torres, and Collura without pay. After the suspensions, all three were reassigned to new routes. Amboy contends that, "prior to and after its hearing, Amboy had no conversations or discussions with any Board of Education or OPT official regarding the charges against Hill and the escorts." (Amboy's Rule 3(g) Statement in Opposition ¶ 8)

In early June of 1985, the OPT sent a letter to plaintiff dated June 5, 1985 advising him that the OPT had "scheduled a conference ... regarding a complaint relating to your conduct as a school bus driver/escort." (Exh. "O" of Defendant Board) This letter further advised plaintiff that he was "entitled to be represented by counsel, and offer evidence on his own behalf." Plaintiff does not dispute that he received this notification, but he does claim that he never received the second page of this letter — a page dated June 6, 1985 and typewritten on a machine different from the machine on which the first page was typewritten. That second page, which the defendant Board insists was sent, advised plaintiff of the specific charge pending against him:

It has been alleged that on May 13, 1985, on the trip to school, witnesses saw Mr. Hill untie the hands of Cecil Brimmage who attends special education classes at PS 396 Brooklyn.

The student in question was injured to such a degree that rope burns were visible on his hands, this was verified by the teacher in charge the same morning.

On June 20, 1985, the OPT conducted its hearing with respect to the incident of May 13, 1985. Plaintiff was present with a union representative, and he testified when examined by members of the OPT. However, plaintiff did not present any evidence on his own behalf. Further, even though defendants eagerly point out that plaintiff did not cross-examine any of the witnesses against him, the record does not indicate clearly that any such witnesses attended this hearing. That is, although the record notes the appearances of Michael Gatto on behalf of Amboy, Ronni Michelson on behalf of Catholic Guardian Society, and Joan Roberson on behalf of "BBDSO" (an organization not identified in the papers of the parties) — and although the record reflects that Gatto and Michelson answered questions from the panel members of the OPT — the record does not disclose that these persons were ever sworn as witnesses. (Exh. "P" of Defendant Board) Nor does the record indicate any time at which the panel members — who nominally conducted the hearing — advised plaintiff that he could question Gatto or Michelson. And yet, no other witnesses were called by the OPT during this part of the hearing.

Indeed, on this last point there is further ambiguity. The parties' submissions do not indicate whether the June 20, 1985 proceedings constituted only one hearing (concerning the plaintiff's conduct) or two hearings (concerning, as well, the conduct of escort Collura). Both parties agree that at that hearing plaintiff: testified about his own behavior; presented no evidence on his own behalf; and was excused from the hearing before Collura was called to testify. But it was during Collura's testimony that she insisted she had bound Brimmage only on plaintiff's instructions. Defendant Board of Education contends that plaintiff was dismissed from the hearing before Collura testified because her testimony was part of a "second" hearing — that is, an inquiry into her own conduct. Accordingly, the OPT argues that plaintiff should have been present at this "second" hearing only if he were called as a witness by one of the parties. And yet, the transcript of the "two" hearings curiously resembles the transcript of a single, integrated hearing, as an OPT panel member in essence conceded during the course of his deposition testimony. (See Exh. "A" of Plaintiff at 203)

On June 24, 1985, Director of the OPT, Gregory Kaladjian, advised Amboy by letter that the Board had decided to decertify plaintiff;¹ Amboy advised plaintiff that he...