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HILL v. NEW YORK CITY BD. OF EDUC.

November 12, 1992

ARCHIBALD HILL, Plaintiff,
v.
NEW YORK CITY BOARD OF EDUCATION, BUREAU OF PUPIL TRANSPORTATION, and AMBOY BUS COMPANY, INC., Defendants.



The opinion of the court was delivered by: I. LEO GLASSER

MEMORANDUM AND ORDER

 GLASSER, United States 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 P 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 PP 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. P 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 P 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 P 8)

 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; *fn1" Amboy advised plaintiff that he had been decertified and immediately thereafter terminated his employment. As to the two escorts, however, the OPT decided that they should be required to take the Escort Basic Training Program for a second time. *fn2" Neither escort was fired.

 Finally, after receipt of his EEOC right-to-sue letter, plaintiff timely instituted this action against the Board (through the OPT) and against Amboy. He states as his five causes of action: (1) that defendants *fn3" discriminated against plaintiff by terminating him on the bases of race, sex, and national origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.; (2) that defendants deprived plaintiff of his livelihood and property without due process of law in violation of 42 U.S.C. § 1983; (3) that defendants conspired to deprive plaintiff of his livelihood and property without due process of law in violation of 42 U.S.C. § 1985(3); (4) that defendants intentionally discriminated against him in violation of 42 U.S.C. §§ 1981 and 1983; and (5) that defendants conspired to discriminate intentionally against him in violation of 42 U.S.C. § 1985(3). Defendants have moved for summary judgment on all causes of action; plaintiff has cross-moved for summary judgment on the first and the second causes of action.

 DISCUSSION

 Federal Rule of Civil Procedure 56(c) provides in relevant part that summary judgment shall be rendered "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Thus, Rule 56(c) sets forth as clear prerequisites for summary judgment: first, the absence of dispute as to any material fact; and, second, entitlement to judgment as a matter of law.

 The Supreme Court has established a clear test for whether an issue of fact is "genuine" for the purposes of summary judgment. In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986), the Court stated that a "dispute about a material fact is 'genuine' . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Thus, "if the evidence is merely colorable . . . or is not significantly probative, . . . summary judgment may be granted." Id. at 249-50. However, the existence of such a genuine issue of fact does not in itself defeat a motion for summary judgment; rather, the issue must be of a material fact. As the Court further stated in Anderson: "As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. at 248. Thus, in order to evaluate the materiality of any disputed facts, this court must examine the substantive law underlying plaintiff's causes of action; it is only with reference to those governing standards that this court may determine whether or not the entry of summary judgment is appropriate.

 Finally, in considering a motion for summary judgment, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id. at 249. And, insofar as granting a motion for summary judgment "deprives a party of its day in court and the right to present its cause to a jury, the district court in examining the record must resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party." Gibson v. American Broadcasting Cos., Inc., 892 F.2d 1128, 1132 (2d Cir. 1989).

 I. Title VII: Defendants Board and Amboy

 Title VII of the Civil Rights Act of 1964 prohibits discriminatory employment practices. Specifically, 42 U.S.C. § 2000e-2(a)(1) provides, in relevant part, that:

 It shall be an unlawful employment practice for an employer . . . to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, . . . sex, or national origin . . . .

 In this case, plaintiff alleges that both the Board and Amboy did so discriminate against him on these impermissible bases: the Board decertified him and Amboy discharged him because he is a black, Jamaican-born male. As a threshold matter, the Board urges that it is not subject to the provisions of Title VII since it was not the "employer" of plaintiff as that word is used in Section 2000e-2(a)(1); rather, the Board contends that it merely "licensed" or certified plaintiff to perform work for his employer, Amboy, under contracts between Amboy and the Board. *fn4" Accordingly, before addressing the possible liability of both defendants under Title VII, this court will respond to the Board's argument that Title VII does not apply to it at all.

 1. The Board as "Employer":

 For purposes of Title VII, "employer" is defined -- with "magnificent circularity", Broussard v. L.H. Bossier, Inc., 789 F.2d 1158, 1160 (5th Cir. 1986) -- by 42 U.S.C. § 2000e(b) as "a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding year . . . ." This "definition" -- in effect, that an employer is one who employs employees -- begs for a clarifying construction by the courts.

 Plaintiff would not have the court look very far. He points out that Section 2000e(a) defines "person" to include "governmental agencies" such as the Board of Education. He then argues that since the Board had "fifteen or more employees for each working day in each of twenty or more calendar weeks in" the relevant year, the Board constituted an "employer" under Title VII. Plaintiff thus entirely sidesteps the question of whether the Board was or was not his employer; he apparently considers dispositive the fact that the Board is the employer of somebody -- whomever that person may be. (See Memorandum of Plaintiff in Opposition at 40 stating "The statute thus protects not only an employer's employees, but 'any individual' against whom an employer wrongfully discriminates.") However, this argument ignores the fundamental predicate for Title VII liability -- the existence of an employment relationship between the one who discriminates against another and that other who finds himself the victim of that discrimination. This court declines to follow plaintiff's interpretation of this provision.

 Rather, defendant Board is correct to point out that courts have wrestled with the test for determining employer status under Title VII. Indeed, this problem has proven most difficult in the context of distinguishing between employers and independent contractors. As the Fifth Circuit has observed:

 Three tests have been devised by the courts to unravel the employee/independent contractor conundrum. The first is the traditional common law test of agency, turning on the employer's right to control. This test was replaced in Fair Labor standards Act cases by an "'economic realities' test under which persons are considered employees if they, 'as a matter of economic reality, are dependent upon the business to which they render service.'" Hickey v. Arkla Industries, Inc., 699 F.2d 748, 751 (5th Cir. 1983) (citing Mednick v. Albert Enterprises, Inc., 508 F.2d 297 (5th Cir. 1975), quoting Bartels v. Birminghman, 332 U.S. 126, 130, 91 L. Ed. 1947, 67 S. Ct. 1547 . . . (1947)). The third test is a hybrid which considers the "economic realities" of the work relationship as an important factor in the calculus, but which focuses more on "the extent of the employer's right to control the 'means and manner' of the worker's performance . . . ." Spirides v. Reinhardt, 198 U.S. App. D.C. 93, 613 F.2d 826, 831 (D.C. Cir. 1979) (Title VII case).

 Mares v. Marsh, 777 F.2d 1066, 1067 (5th Cir. 1985) (footnotes omitted). The Board suggests that the "hybrid" test adopted in Spirides v. Reinhardt, 198 U.S. App. D.C. 93, 613 F.2d 826 (D.C. Cir. 1979), is the test that courts "to an increasing extent" have used in the context of Title VII. *fn5" (Defendant Board's Reply Memorandum at 16) As such, the Board urges this court to apply the hybrid test to determine whether the Board was an "employer" of plaintiff at the time he was decertified.

 However, Second Circuit case law does not support such clear adherence to the "hybrid" test. In Spirt v. Teachers Insurance & Annuity Association, 691 F.2d 1054, 1063 (2d Cir. 1982), vacated, 463 U.S. 1223, 77 L. Ed. 2d 1406, 103 S. Ct. 3565 (1983), on remand, 735 F.2d 23 (2d Cir.), cert. denied, 469 U.S. 881, 105 S. Ct. 247, 83 L. Ed. 2d 185 (1984), a case decided after Spirides, the Second Circuit employed the broader "economic realities" test mentioned above and described in greater detail below. And in Hyland v. New Haven Radiology Assoc., P.C., 794 F.2d 793 (2d Cir. 1986), the court referred to the Spirides hybrid test without commenting on how that case applies to actions in its circuit. Id. at 797 ("A 'hybrid' economic realities/right to control test has been introduced to determine whether one claiming the benefits of the ADEA is an employee or an independent contractor."). The lower courts within the Second Circuit have applied both the broad test of Spirt and the narrower test of Spirides. Compare United States v. Yonkers, 592 F. Supp. 570, 590 (S.D.N.Y. 1984) (quoting Spirt) with Tadros v. Coleman, 717 F. Supp. 996, 1004 (S.D.N.Y. 1989) (hybrid ...


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