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Published in Print: January 15, 2003, as Law Update

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Just What Does It Take to Get Fired? More, Courts Say

How old is too old to drive a school bus?

School administrators and board members might want to banish that question from their minds, given a recent decision by a federal appeals court to reinstate an age-discrimination lawsuit by a driver dismissed at age 70.

The school board of the 536-student Liberal, Mo., district claimed that the decision not to renew the employment of driver George Trout in 1998 was motivated by safety concerns, not age. The district presented evidence in court papers that Mr. Trout had once steered his bus full of children the wrong way on a highway ramp, had cut off another driver, and had unsafely pulled out in front of another vehicle.

But the U.S. Equal Employment Opportunity Commission, which sued the district under the federal Age Discrimination in Employment Act, pointed to evidence that board members had discussed the driver's age and had suggested he was too old to continue in the job.

Mr. Trout alleged in court papers that district Superintendent H.G. Gretlein was present at the board's closed-door meeting, and that Mr. Gretlein later told the driver "the board thought that he was too old." Mr. Gretlein and board members denied in court papers that Mr. Trout's age was discussed.

But the EEOC also noted a letter from Mr. Gretlein to the state unemployment office that cited both safety and "the fact that Mr. Trout is now 701/2 years of age" as the school board's reasons for the nonrenewal of his employment.

A federal district court ruled in favor of the school district, but in a Dec. 31 decision, the U.S. Court of Appeals for the 8th Circuit said Mr. Trout's case deserves to go before a jury.

A three-judge panel of the St. Louis-based appeals court ruled unanimously that while the evidence was "hotly disputed," the alleged expressions relayed by the superintendent about the board's age concerns showed that the "decisionmakers may have based their decisions, at least in part, on age-based animus."

The appellate panel also noted that the EEOC had presented evidence that some board members did not know about Mr. Trout's safety lapses until after the decision was made against retaining him in his job. And the commission offered evidence that the district had allowed younger drivers with safety complaints to continue driving, the appeals court said.

Teacher Threats

Can a teacher who threatens to shoot her principal be dismissed? If the two are in West Virginia, the answer is: not necessarily.

Marjorie J. Maxey was a 13-year teaching veteran in the 4,600- student McDowell County, W. Va., district when a new principal took over at Bartley Elementary School in the fall of 1996. For reasons that aren't quite clear, the two got off to a bad start. Principal James Spencer began keeping a list of "disagreeable incidents" involving Ms. Maxey, who taught a split 4th and 5th grade class.

Ms. Maxey had always received positive performance evaluations, but in November 1996, the principal asked her to sign an observation form that included several negative comments. She declined to sign. In March 1997, the principal asked her to sign another observation form that included criticisms, and to do so quickly because he had to go to lunch duty. Ms. Maxey said the wind from an open window blew the paper to the floor, where she stopped it with her foot. Mr. Spencer maintained that she stomped on it.

After Ms. Maxey continued to refuse to sign the evaluation, a meeting was arranged involving the teacher, Mr. Spencer, and two district administrators. At that meeting, Ms. Maxey testified, the principal went through a litany of criticisms about her, but she was not allowed to respond. The superintendent told her she must sign the observation form or else face disciplinary action.

Ms. Maxey then made a reference to shooting the principal. All four participants recalled the remark differently.

The principal said Ms. Maxey said, " 'I should have blown your head off with a shotgun' " instead of signing the document. The superintendent recalled it as, " 'Well, I might as well have taken a gun and shot his head off.' " An assistant superintendent remembered similar wording.

Ms. Maxey testified that she said: "'Had I shot you, I would have been in less trouble.'" She acknowledged that the remark was inappropriate, but said she meant her principal no physical harm. She was suspended and later terminated for what administrators termed "intemperance" and "insubordination."

The West Virginia Educational Employees Grievance Board and a state trial court upheld the teacher's dismissal, but the West Virginia Supreme Court of Appeals, the state's highest court, ordered new proceedings in a Dec. 3 ruling. The court held 4-1 that the district had failed to follow a state board of education rule requiring that teachers be provided "an open and honest evaluation of their performance" and the opportunity to improve problem areas.

The court majority said that in the grievance board's re-examination, the board should consider the principal's "limited communication skills" and "his failure to address his concerns in a more constructive posture." Ms. Maxey's shooting comment, while inappropriate, was not a genuine threat to the principal's safety, the court concluded.

Justice Elliott E. Maynard, writing in dissent, said he wondered "just what a teacher has to do to be insubordinate in West Virginia schools today. Apparently, threatening to shoot or kill the principal is not enough."

—Mark Walsh

Vol. 22, Issue 18, Page 10

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