Opinion
C.A. No. 01M-10-008
Submitted: February 8, 2002
Decided: May 31, 2002
Upon Consideration of Appellant's Petition to Set Aside Subpoena Duces Tecum.
GRANTED.
Catherine T. Hickey, Esq., Dover, DE
C. Cullen Rooney, Esq., Dept. of Justice, Wilmington, DE
ORDER
Upon consideration of the Petitioner's petition to set aside a subpoena duces tecum, the respondent's opposition thereto, and the record of the case, it appears that:
1. The petitioner, Caesar Rodney School District, a public school district ("the school district"), has been named as respondent in an unlawful employment practice complaint filed with the Delaware Department of Labor ("the Department"). The complainant is Robert A. Upchurch, a school bus driver. Although a copy of the actual complaint is not a part of the record of this case, the substance of the complaint is that the school district violated Delaware's Handicapped Persons Employment Protections Act ("the Act") by failing to make reasonable accommodation for a physical disability he allegedly has which limits his ability to drive a bus to two hours at a time. The Department is contract agent for the Equal Employment Opportunity Commission ("the EEOC") for enforcement of the anti-discrimination provisions of 42 U.S.C. § 12101 et. seq. His complaint, therefore, invokes the protections of the federal law as well.
2. When Mr. Upchurch filed his complaint, the Department served a subpoena duces tecum on the school district seeking any relevant documents and also requiring the school district to submit a written position statement on the allegations of the complaint. By including a demand for a written position statement, the subpoena goes beyond what would normally be required of a witness. The school district then filed its petition asking that the subpoena duces tecum be quashed on the grounds that the school district is not Mr. Upchurch's employer and, therefore, has no obligation to him under the state and federal statutes involved. The Department opposes the school district's petition and contends that the school district is subject to the Act and the above mentioned federal statutes. The theory advanced by the Department is that an employer, in this case the school district, whose acts discriminate against an employee is within the scope of the statutes even where the employee's direct employer is another entity, in this case the bus company.
Under 19 Del. C. § 715(a), the Department can subpoena witnesses as well as parties.
This court has the statutory authority to modify or set aside any subpoena issued by the Department. 19 Del. C. § 715(d). The statute also provides that compliance with the subpoena shall not run during the pendency of the school district's petition.
3. The facts underlying the complaint are as follows. The school district establishes bus routes for transportation of students to and from school. Bus companies then contract with the school district to run buses over those routes. The bus drivers are employed by the bus company, not the school district. Pursuant to state regulations, however, the school districts do maintain a file on each bus driver which contains information including verification that the driver has attended school bus class, an affidavit concerning criminal offenses, drug testing information and verification that the driver has had a physical. In addition, the school district reserves the right to reject a driver who is unqualified. Mr. Upchurch was a driver for Eagle Transportation ("the bus company"). Eagle Transportation had a contract with the school district for one or more of the bus routes.
4. The particular bus route that gave rise to the dispute in this case was for the Charlton School, which serves students who have special needs. Apparently, the attendance zone for the Charlton School is not limited to the Caesar Rodney School District but extends throughout Kent County. In addition, the route involved was a summer route which is somewhat different than the route during the normal school year because the students who participate in the summer program at Charlton are somewhat different from the students who participate in the regular school program. For these reasons, the summer bus routes for the Charlton School tend to be the longest bus routes because of the distance covered, apparently longer than two hours. Eagle Transportation had the Charlton bus route and Mr. Upchurch was the driver.
5. In support of its petition to quash the subpoena, the school district presented the testimony of Penelope A. Barkley, the school district's transportation officer. According to her testimony, a meeting was held on July 12, 2001 at the request of Mr. Upchurch and an aide assigned to the bus for the purpose of discussing the length of the bus ride for the students and some behavior issues arising from conduct of some of the students. Mr. Upchurch, the aide, Ms. Barkley, a school principal, and the owner of the bus company were in attendance. During the course of the meeting, Mr. Upchurch presented the school transportation officer with documents indicating that he could not drive for more than two hours at a time and also that he should be limited to sedentary work due to physical disability. Ms. Barkley became concerned about whether he could perform his job as a bus driver on that route with restrictions of that nature. She was concerned that a two-hour restriction on driving may not be compatible with that bus route. She was especially concerned about the restriction to sedentary work because driving that particular bus route was not sedentary. The driver of that route had to help children in wheel chairs get on and off the bus. This was the first notice the school district had received of any such restrictions. Mr. Upchurch insisted that the bus route be changed to meet his accommodation. He became quite upset about the concerns Ms. Barkley was expressing. The meeting then degenerated into a very unpleasant one which ultimately resulted in Mr. Upchurch either quitting or being fired by Eagle Transportation during the meeting. After Mr. Upchurch, the aide, and the owner of the bus company left, Ms. Barkley and the principal did make some adjustments that day to the bus route to address the length of the ride and some of the behaviors being exhibited. Some students were shifted to another bus route to shorten the route. Later that day, Ms. Barkley received a fax which increased the length of Mr. Upchurch's restriction to two and one half hours at a time. The fax contained no mention of restriction to sedentary work.
6. Mr. Upchurch's discrimination complaint against the district then followed. The complaint was filed against the school district only, not Eagle Transportation. However, Mr. Upchurch apparently resumed work with the bus company about a month and a half later when the new school year started, because he was observed driving a bus at that time. Thus the dispute is limited to the summer bus route for the Charlton school. It would appear that the subpoena was issued on October 9, 2001, after Mr. Upchurch had resumed his employment as a bus driver.
7. The school district contends that it was not Mr. Upchurch's employer and that only an individual's employer is subject to the laws prohibiting employment discrimination based on handicap. It contends, therefore, that it should not be required to respond as a respondent and that the subpoena duces tecum served on it should be quashed. It cites the case of Choe-Rively v. Vietnam Veterans of America Chapter 83 as setting forth the criteria to determine whether an employer-employee relationship exists, and that under the criteria of that case Mr. Upchurch was an employee of the bus company, not the school district. It is clear from the record of this case, and I find, that Mr. Upchurch was the employee of the bus company, not the school district.
135 F. Supp.2d 462 (Dist. Del. 2001).
8. The Department agrees that Eagle Transportation, not the school district, was Mr. Upchurch's employer. The Department contends, however, that the scope of these employment discrimination statutes extends to employers who are not direct employers of the individual involved. An employer is defined as "the State or any political subdivision or board, department, commission or school district thereof and any person employing, within the State, 20 or more employees . . ." The Department argues that the school district is within this definition and that the definition does not restrict employers to direct employers of the employee involved. This theory, sometimes referred to as the "interference theory", is found in a line of federal cases beginning with Sibley Memorial Hosp. V. Wilson. These cases can now be found in several circuits. A representative example is the case of U.S. v. New York Department of Motor Vehicles, which also involved a school bus driver. The Department of Motor Vehicles and Department of Education for the State of New York had regulations which provided that a person with a missing limb could not drive a school bus. The complainant had been driving a school bus for Amboy Bus Co., which had contracts with the Three Village Central School District ("Three Village"). He had an accident in which he lost a leg. He became proficient with a prosthesis and could still drive the bus, but because of the regulation he was prohibited from doing so. He filed a complaint under the American with Disabilities Act and included Three Village as a respondent, along with the Department of Motor Vehicles, the Department of Education and Amboy Bus Co. Three Village moved for summary judgment on the grounds, among others, that it was not the complainant's employer. Although the United States District Court for the Eastern District of New York ultimately granted Three Village's motion on the grounds that it did not discriminate against the complainant, it refused to do so on the grounds that Three Village was not a covered employer. In doing so, it stated as follows:
488 F.2d 1338 (D.C. Cir. 1973).
82 F. Supp.2d 42 (E.D.N.Y 2000).
The term "employer" as used in civil rights laws extends beyond the entity that pays an individual his or her paycheck. A defendant that does not have a direct employment relationship with a plaintiff may nonetheless be liable under Title VII of the Civil Rights Act of 1964 ("Title VII"), the Age Discrimination in Employment Act (ADEA), or the ADA for its discriminatory acts if it interferes with the plaintiff's employment opportunities with a third party and the defendant controls access to those opportunities.
The theory expressed in this line of cases concedes that the employer alleged to have engaged in a discriminatory act is not the employer of the employee involved, but proceeds on the theory that the use of the term "employer" as used in statutes such as the ones involved here is not limited to direct employer situations.
The Sibley line of cases is not discussed in the Choe-Rively case relied upon by the school district.
9. After having given careful consideration to the positions of the parties and the record of the case, I have reservations about whether this case presents a sufficiently viable, justiciable dispute to require a ruling on the important legal principles which the parties have presented. It appears that Mr. Upchurch resumed his employment with the bus company shortly after the unfortunate meeting of July 12. The Department has now heard the sworn, live testimony of the district's transportation officer fully explaining the school district's side of this matter and describing the nature of the documents it possesses. Admittedly, I have not heard the testimony of Mr. Upchurch, but on the record before me I have no reason to doubt the basic factual correctness of Ms. Barker's testimony. It appears that the school district did adjust the route to shorten it by shifting students to another route. Although this may have been motivated by a desire to shorten the ride for the students, it had the effect of shortening the ride for the driver as well. The ultimate issue before me is simply whether to set aside or compel performance of the subpoena duces tecum. Based upon the facts and circumstances of this case, I exercise my discretion under the statute to set aside the subpoena duces tecum which was served on the school district on October 9, 2001.
10. The school district's petition to set aside the subpoena is granted.
IT IS SO ORDERED.