STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA EDUCATION ASSOCIATION/UNITED, )
)
Petitioner, )
and )
) FLORIDA TEACHING PROFESSION/NATIONAL ) EDUCATION ASSOCIATION, )
) CASE NO. 88-0847RX
Intervenor, )
)
vs. )
)
DEPARTMENT OF EDUCATION, )
)
Respondent. )
)
FINAL ORDER
Pursuant to notice, a formal hearing was held in this case on October 10 and 11, 1988, in Tallahassee, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.
APPEARANCES
For Petitioner: Lorene C. Powell
Assistant General Counsel FEA/United
208 West Pensacola Street Tallahassee, Florida 32301
For Respondent: Carl J. Zahner
Carolyn S. Holifield Assistant General Counsels Department of Education Knott Building
Tallahassee, Florida 32399
For Intervenor: Vernon T. Grizzard
Attorney at Law
116 South Monroe Street Tallahassee, Florida 32301
ISSUE
The ultimate issue is whether Rule 6A-3.0141(1)(a) Florida Administrative Code, is an invalid exercise of delegated legislative authority.
BACKGROUND AND PROCEDURAL MATTERS
The Petitioner, Florida Education Association/United (FEA/United), filed a Petition seeking a declaration that Rule 6A-3.0141, where a maximum age for employment of school bus drivers is established, is an invalid exercise of delegated legislative authority in that it constitutes age discrimination in violation of the Florida Human Rights Act, Section 760.10, Florida Statutes, and Section 112.044, Florida Statutes, and the Age Discrimination in Employment Act of 1967, 29 U.S.C. Section 621, et seq., as well as the Fourteenth Amendment of the United States Constitution and Article I Section 2 of the Florida Constitution. Intervenor, Florida Teaching Profession/National Education Association (FTP-NEA), joined in the Petition.
FEA/United presented the testimony of Sue H. Schler, M.D., Harvey L. Sterns, Ph.D., and Marc G. Gertz, Ph.D. Petitioner's Exhibits 1, 2, 3A, 3B, 4- 8, and 10 (a late filed exhibit) are admitted in evidence.
FTP-NEA presented the testimony of Mark Ross Trammell and had FTP Exhibit 1 admitted in evidence.
Respondent, Department of Education (the Department) presented the testimony of Larry McEntire, Patricia F. Waller, Ph.D., and Julian A. Waller,
Respondent's Exhibits A-D, G, H, IA, IB, and J are admitted in evidence.
Post hearing, FTP-NEA filed a Request for Official Recognition which was opposed by the Department. The Request for Official Recognition was denied by Order dated November 22 1988.
The transcript of the proceedings was filed on October 26, 1988. The parties timely filed their proposed findings of fact and conclusions of law on November 16 and 17, 1988. All proposed findings of fact and conclusions of law have been considered. Specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Final Order.
FINDINGS OF FACT
History of Rule 6A-0141
Prior to the promulgation of Rule 6A-3.0141, effective August 1, 1986, the Department did not have an established mandatory retirement age for public school bus drivers. It is not known how many drivers remained employed after reaching age 70.
The mandatory retirement age of 70 originated from the concern expressed by transportation personnel in several local school districts about the great variance in the quality of physical examinations given to screen drivers for safety. The old rule allowed school districts to designate any licensed physician to administer the physical, and, in many cases, drivers were going to family physicians who were hesitant to fail them. The mandatory retirement age of 70 was adopted to address this concern, however, the old rule provision allowing local school districts to designate any licensed physician to conduct physical exams went unchanged.
Larry McEntire, Administrator of the Department's School Transportation Management Section, worked to formulate the new rule with the five or six members of the standing rules committee of the Florida Association for Pupil Transportation (FAPT), which is comprised of personnel from the local school
districts. The rule change instituted comprehensive classroom and on-the-road driver training requirements. The anew age restriction was not controversial; in fact the official published justification for the rule mentioned only the new training requirements, not the new mandatory retirement age.
The particular age of 70 was arrived at through information provided by other states, ten of which had a mandatory retirement age of 70, consistent with the age-70 limitation on coverage under the federal ADEA at the time. No Florida school bus accident data, which was then viewed as unreliable, was used in choosing 70 as the age for mandatory retirement. No Florida statute suggested that age in general, or age 70 in particular, be used as a criterion in establishing qualifications for Florida school bus drivers.
With regard to training and increased frequency of physical examinations at age 65 and over, the rule is patterned after the safety standards of the National Highway Traffic Safety Administration (NHTSA). However, the mandatory retirement age of 70 is in direct conflict with the NHTSA standards in effect then and now, which recommend no mandatory retirement age.
The Department received a survey of state directors of pupil transportation on September 3, 1985, which was issued August 29, 1985, by the National School Transportation Association, indicating that at least 30 states had no age limit at that time for employment as a school bus driver.
Although Mr. McEntire had previously seen the 1969 study by Promisel in his master's program in transportation and safety at Florida State University, neither that study nor any other study or data analysis was presented to or considered by the FAPT rules committee or others in the Department. Mr. McEntire is not aware of any study, data, or analysis considered during rulemaking which contained a recommendation that age 70 be adopted as a mandatory retirement age for school bus drivers.
Mr. McEntire is unaware of whether the School Health Advisory Committee of the Florida Medical Association (FMA), which has a longstanding relationship with the Department, has ever recommended adoption of a mandatory retirement age of 70 as a means of ensuring that school bus drivers have the necessary qualifications to drive safely.
Mr. McEntire and the FAPT rules committee did see a two-page document from Iowa entitled "In re Sievert Van Dyke" which reported, among other things, that "school bus drivers under 30 years and over 65 have a disproportionately large number of accidents," that "30, 40, 50 percent of the variability can be predicted on the basis of age," and that "sudden incapacity due to medical defects becomes significantly more frequent in any group reaching age 60."
In Rule 6A-3.0141 several statutes are cited as specific authority for the rule and certain other statutes are cited as the specific laws implemented. None of the provisions of law mentioned in the rule requires a mandatory 70 year retirement age for public school bus drivers.
The Student Transportation Coordinator for the Florida Highway Patrol, which has regulatory jurisdiction over approximately 4,000 private school bus drivers in Florida, was aware when the Department of Education instituted a mandatory retirement age of 70. The jurisdiction and mission of the Florida Highway Patrol in this regard directly parallels the mission of the Department of Education concerning public school bus drivers.
While the Florida Highway Patrol requires drivers age 65 and over to have a physical examination semiannually rather than annually, as does the Department of Education, there is no age limitation for driver certification, there has never been one, and no change is planned in this policy.
Age and Accident Risk
Patricia J. Waller, Ph.D., is the Associate Director for Driver Studies at the University of North Carolina, Highway Safety Research Center, Director of the University of North Carolina Injury Prevention Research Center, and research professor at the University of North Carolina Center for Policy and Health. She is an expert in the area of driver licensing and crash safety.
Dr. Patricia Waller has studied the relationship between age and accident rate. The results of Dr. Waller's research as it relates to age and crash risk are that when number of miles driven is considered, there is an increase in crash risk.
Dr. Patricia Waller was commissioned by the National Academy of Sciences to write a paper, "Renewal Licensure of the Elderly Driver," to be included in a comprehensive study that was done on transportation in an aging society. The publication in which Dr. Waller's paper appears officially came out in October 11, 1988.
Dr. Patricia Waller's paper, "Renewal Licensure of the Elderly Driver", was done after a review of all the literature that was available on the topic of licensure and re-licensure of older drivers. The literature available included studies related to age and accident rate.
Studies have shown that drivers over 65 years of age as a group behave very responsibly in driving situations. Older drivers tend to restrict their own driving to the best time and locations. For example, because of marked vision changes that occur with increasing age, older drivers reduce their nighttime driving; also, older drivers also tend to reduce their driving in cases of inclement weather or during heavy traffic times.
Despite the fact that older drivers restrict their own driving so that it is less demanding, there is still an increase in crash risk with increasing age.
The crash rate increases for people in their middle to late fifties, particularly when the number of miles driven in considered. However, the crash risk increases even more for individuals in their early to late sixties. With respect to drivers in their sixties and seventies, age is associated with an increasingly accelerated risk of crash. There is also an increase in crash risk per mile with increasing age.
It is Dr. P. Waller's opinion that the Department should set a mandatory retirement age for school bus drivers because the crash data on licensed drivers indicates increasing involvement after age 65.
It is also Dr. P. Waller's opinion that it is in everybody's best interest that older people as a group be allowed to meet personal transportation needs by retaining their driver's license for as long as possible. She feels there are tradeoffs that allow us to say we are willing to accept the highway safety risk in order to enable this person to continue to function independently.
Dr. P. Waller does not believe that the state of the art permits adequate testing to determine the ability to safely drive; however, she is not a medical doctor fully versed in medical testing.
For her proposition that older school bus drivers should have the same crash risk as older drivers generally, Dr. P. Waller relied on the Promisel data. The Promisel data, set forth in a 1969 report from Dunlap and Associates on school bus safety and operator age in relation to school bus accidents, shows that the number of crashes increases very dramatically with age, particularly when the number of miles driven is considered.
The Promisel study found no correlation between age and accident severity, recommended against the establishment of school bus driver age limits, specifically disclaimed any causal relationship between age and accidents, and made no analysis of accident risk associated with age 65 or over.
The skewed age population in the Promisel study and the "generational cohort effect" (simply stated, the older a study of drivers, the less validity it may have for current drivers) render any accident risk projections from that study to today's 70-and-over Florida school bus drivers unreliable.
Finally, it is Dr. P. Waller's opinion that age 70 is an arbitrary number and that any set age is arbitrary, however, she is aware of no alterative to using age as the cutoff standard in order to maximize safety.
Dr. Julian Waller is a medical doctor and also has a Master of Public Health Degree in Epidemiology. For the past 20 years, he has been employed at the University of Vermont College of Medicine. Since 1978, Dr. J. Waller has been a professor of medicine in the geriatric unit. Dr. J. Waller is an expert in the areas of human physiology as it relates to driving and medical impairment to driving; also, Dr. J. Waller is an expert in the area of statistics. Dr. J. Waller has not examined a patient since 1961. He is not certified in the sub- specialty of geriatric medicine and he is not familiar with the term heteroschistosity. He has not personally studied bus drivers.
According to Dr. J. Waller, there are four basic driving tasks, all of which involve some type of commercial driving, that put excessive stress on drivers. The specific categories are: driving a bus, driving a large truck, driving an ambulance, and driving a police or fire vehicle.
In order to drive a vehicle of any type, four types of capabilities are needed: (1) the person must be alert; (2) the person must be able to identify things in the environment that potentially represent a threat; (3) the person must be able to make timely and appropriate decisions; and (4) the person must be capable of carrying out the decision in a timely and appropriate manner.
Normal changes occur as an individual ages that may affect his ability to perform the tasks required in a driving situation.
Vision normally deteriorates with increasing age. There may be a narrowing of visual fields, a decrease in ability to adapt to dark situations, and problems associated with glare.
An area of concern that may affect older individuals is contrast sensitivity. An individual with problems in this area may have absolutely normal static visual acuity. That is, he can read a typical Snellan chart very
easily, but cannot read signs or other things in the environmental which are not perfect contrast of black and white. A person affected by contrast sensitivity may not be aware of many things in their environment, such as traffic signs and street signs unless they are black and white.
Complex reaction time is an important factor to consider for a person in a driving situation who is required to make decisions. Older people often do not do well in complex situations where reaction time is critical.
A problem among older individuals is the beginning of alteration of consciousness for very brief periods of which they are not totally aware.
A physical examination or a mental examination evaluates the performance of the individual at that particular time only. An individual's performance may vary from day to day or moment to moment.
During the early stages, Alzheimer's disease may be difficult to identify. However, it is during this time that individuals are most likely to be driving. The symptoms which the disease manifests, though not apparent during a physical examination, may affect an individual's driving.
Everyone has a variability in their performance. However, because an older person's spare capacity has been eroded, they have less spare capacity to respond to the demands of driving situations. As a result, what may be even a relatively normal variation may put the older person below the minimum that is required to deal with increased demand required to meet emergencies and more demanding driving situations.
Further, according to Dr. J. Waller, the physiological changes that affect a person's vision, stamina, and ability to deal with time-bound decision making and response time so as to effect crash rate begins at about age 55. By age 65, the increased crash risk of all drivers is significant enough to cause concern about people this age performing a special driving task such as driving a school bus.
Dr. J. Waller believes that health-related criteria used in a physical examination lack the precise, predictable cutoff points to distinguish between those older drivers who should be permitted to drive and those who should not be permitted to drive.
In areas where special licensing procedures are used to license older drivers, there is still the same increased crash risk for older drivers.
It is Dr. J. Waller's opinion that as people grow older they have more crashes per unit of miles driven and turn out to be responsible for those crashes more frequently.
It is Dr. J. Waller's opinion that it is reasonable for the Department to set an age limit for school bus drivers and that such an age should not be much past the age of about 65. He bases this opinion on his experience in working with departments of motor vehicles through the years.
It is also Dr. J. Waller's opinion that the problem of physical impairment and driving and crash risk is too inexact to permit appropriate identifying criteria for those drivers who should not be permitted to drive. Dr. J. Waller served on a committee of the American Medical Association that attempted to put together an appropriate set of identifying criteria and the
doctors were unable to agree. According to Dr. Waller, this lack of agreement reflects basically a lack of progress in the predictive capabilities of physical examination that has existed since 1927.
Dr. J. Waller feels that the Folstein mini-mental examination cannot identify early Alzheimer's disease. It is Dr. J. Waller's further opinion that physical examinations do not reveal subtle degradation and reduced capacity in individuals.
Dr. J. Waller believes that subtle degradation changes cannot be measured, but have individual components which may be testable under certain circumstances. However, the way they all relate to each other has never been tested. It is his opinion that the way we know that they exist, since they cannot be tested, is because we see what is the end result.
Dr. J. Waller presented a bar graph, marked as Respondent's Exhibit K, which he relied on for his opinion that the relationship between age and accident risk is approaching an exponential relationship. That graph and the opinion based on it are unreliable. The graph is not statistically accurate, is visually deceptive as drawn, and is an unsubstantiated data analysis.
Marc G. Gertz, Ph.D., is a professor at Florida State University and president of Research Network, an independent data analysis, survey, research methodology and political polling firm. As part of his duties at F.S.U., Dr. Gertz teaches many of the graduate courses in research methodology and statistics as well as having been chairman of and serving on the Ph.D. Methods Comprehensive Examination Committee for the previous eleven years.
Dr. Gertz was employed by FEA/United to conduct an analysis of school bus drivers and accident rates in the State of Florida. In collecting data for this project, Dr. Gertz was not able to find any previous study ever done in Florida on school bus drivers and accident rates.
This project entailed the collection of three sets of data. One set of data was obtained from the Department of Highway Safety and Motor Vehicles (DMV). The second set of data was obtained from the Department of Education (DOE) and the third set of data was a complete enumeration (as opposed to a random sample) obtained from individual counties, specifically Dade, Pinellas, Okaloosa and Hendry.
Dr. Gertz performed a number of statistical analyses on the data collected and compiled it into a report. Dr. Gertz pointed out that this is an original collection of data as opposed to a summary of data from the agencies in question that have control of the data. This data is known as primary data which is data you collect yourself as opposed to secondary data, which is someone else's data used to do your analysis. The problem with secondary data, according to Dr. Gertz, is you don't know what went into their choice of variables, their choice of case, how they operationalized, how they defined the terms or how they manipulated the data.
An example of one piece of primary or "raw" data that was collected by Dr. Gertz for this study is the individual accident reports on file with the DMV.
The DMV data was compared for years 1984 and 1985 for each of the different variables, for example, the number of injuries or the number of
fatalities was compared with age to obtain both simple correlations and age as a curvilinear function.
Based on his research, Dr. Gertz found from the DMV data that age had no statistically significant correlation with accidents of school bus drivers in Florida. Dr. Gertz explained the negative numbers of page 1 of his report as negative correlations which indicate that younger drivers are more likely to have accidents, although he was not comfortable saying that the correlation was statistically significant.
Dr. Gertz pointed out that in his examination of the DMV data, what is called an accident may not be what all of us would call an accident. For example, if you knock over a tree limb or if the bus mirror is damaged, this could result in an accident report being filed with the DMV. In the bottom half of page 1 of his report, age was squared to give more weight to the younger and older people to see if age was a curvilinear function of these variables, but this analysis did not change the statistical results.
Dr. Gertz performed more sophisticated analyses on the data sets he collected such as regression analysis and discrimination function analysis, but could still not explain the variation in accidents with any of the variables tested to correlate age with any of those variables.
The second set of data was obtained from the DOE for the years 1986 and 1987. The results of Dr. Gertz's analyses are found on page 2 of his report. This data revealed three significant relationships, although in Dr. Gertz's opinion the significance was at a very, very low level. The statistical significance found by Dr. Gertz is .05 which means that 95 times out of 100 times it would not be happening at random. These three significant relationship are (a) in 1986 younger drivers were more likely to have had prior accidents;
(b) in 1987 the younger drivers were most statistically likely to have been charged in the accident; and (c) in 1986 bus drivers who did have in-service training were less likely to have had accidents. For (c) the statistical significance is .01.
On page 3 of his report, age was cited as a percentage for the years 1984-1987 using both the DMV data and the DOE data. Dr. Gertz explained this data in terms of the "n" sizes. The "n" size means the sample size. The rule of thumb, according to Dr. Gertz, is that you don't analyze columns that have less than 25 cases in the sample. In the data provided, however, some sample sizes were smaller than 25 which skews the percentage. The closest comparison in this data is in the 1984 Department of Motor Vehicle Data in which a sample size of 18-24 year olds contained 24 cases. The analysis revealed that for all accidents, the percentage where the driver was not charged is 72 percent for 18-
24 year olds and 87 percent in the 65 and older group.
Petitioner's Exhibit 1, pages 4 and 5 (Gertz's report) contains the data from the third data set. This data was collected directly from the counties and contains a complete enumeration and includes all school bus drivers, those who did not have accidents as well as those who did have accidents.
Based on all the data and his analyses, it was Dr. Gertz's opinion that age did not explain why accidents occurred among school bus drivers in the State of Florida. There is no statistically significant correlation between increased age of public school bus drivers and increased accident risk. In fact, the only slight correlation is between younger drivers and increased
accident risk. His conclusion is that, based on the current Florida data, age is no factor in accident risk for public school bus drivers. His opinions are accepted as most creditable because they are based on current Florida data regarding school bus drivers.
Individual Medical Testing
Dr. Sue H. Schler is a medical doctor and holds a Master's degree in public health and biostatistics and epidemiology.
Dr. Schler is an expert in the field of geriatric medicine.
Dr. Schler passed the first subspeciality certification examination in geriatric medicine ever offered, making geriatric medicine officially a subspeciality of internal medicine as of 1988. Dr. Schler teaches medical students at the University of South Florida College of Medicine.
Dr. Schler believes that the average physician in Florida could easily be trained to conduct a physical examination (including a neurological exam) on a school bus driver that would take about half an hour to perform which would screen out the safe from the unsafe driver of any age.
Dr. Schler explained the principle of heteroschistosity. The principle of heteroschistosity means that there is an increasing variability between individuals of increasing age as for as their physical health and their functional capacity. In light of this principle, medical examinations are increasingly likely to detect medical impairments of both a pathological and a normative nature as individuals increase in age.
In Dr. Schler's opinion, functional assessment is the most appropriate method of testing individuals to determine physical and mental capabilities. Functional assessment is one of the big trends in geriatric medicine and in the past few years has been proven to have predictive value for morbidity and mortality.
Dr. Schler examined ESE Form No. 479, which is the application for a license to drive a school bus, and found it to be grossly inadequate to safely screen a driver of any age.
Florida's physical examination for school bus drivers could be substantially improved by assuring the quality and competence of the physician and his familiarity with the particular procedures used, and by adding more "hands-on" procedures. The current examination form requires only that "vital signs" be taken and a basic "20/20" vision test be performed, and then asks the physician to answer 12 questions "yes" or "no" with a "brief explanation" for any "no" answer. The physician's certification was recently amended to include the limiting language "on that date" regarding the school bus driver's condition.
Dr. Schler believes Florida's screening procedure could be made adequate for school bus drivers if certain additional tests and procedures were added to the current form. Dr. Schler specifically mentioned a better medical history, a better physical examination, including a complete neurological exam, and a mental status examination such as the Folstein Mini Mental Status Test, and additional testing of vision and hearing, including measuring static and dynamic visual acuity, night vision, response to glare, color vision, visual
fields and depth perception. She also believes that a more extensive history of the use of medications and alcohol should be included.
According to Dr. Schler, the more comprehensive testing would not be difficult and would not require expensive equipment. The additional equipment required for more precise vision testing could be found at most optometrist's offices in addition to the equipment normally found in a doctor's office. Further, these tests can be effectively and inexpensively accomplished through cooperative arrangements with established vision-related companies like Pearle Vision Center.
Dr. Schler makes the clear distinction between the abilities of a healthy individual as opposed to a sick person of any age. An example she gave is that cardiac sudden death is estimated to occur in thirty percent of all people who have heart disease. Forty-year old men or women who have heart attacks have a thirty percent rate of sudden death, the same as with an eighty year old man or woman. Chronic heart disease can be easily diagnosed with a physical examination, according to Dr. Schler.
Dr. Schler believes that vascular disease could be screened to eliminate the risk of strokes. Dr. Schler also states that a lot of vascular disease is asymptomatic for the first twenty to thirty years but can be identified with testing.
In Dr. Schler's opinion the standard confidence rate, with which you predict accuracy in the kinds of physical examinations which she described, is approximately ninety-five percent, i.e., a person's capabilities can be predicted with ninety-five percent accuracy from the examinations given by Dr. Schler and her colleagues.
In Dr. Schler's practice she finds that she screens out a person as unsafe to drive prior to the DMV doing so through their driver license retesting program.
Dr. Schler stated that the application for a license to drive a school bus, although she feels it is inadequate to test school bus drivers, is still much more comprehensive than the driver licensing and retesting given for a regular drivers license.
In Dr. Schler's opinion, the written statements by Dr. Julian Waller, M.D., stating that physical changes take place in people that are unmeasurable was the state of medicine ten or twenty years ago. Currently, in Dr. Schler's opinion, medical doctors are very good at screening out even subtle changes of illness and aging especially as related to driving ability.
Dr. Schler clearly believes that in healthy older drivers, who have the benefit of experience in driving a school bus, experience has been proven to be a major benefit in terms of safety.
According to Dr. Schler, age should only be used as an added safety factor if there were no other way of safely and effectively testing school bus drivers. In her opinion, however, the State of Florida can today efficiently, cheaply and accurately test these drivers annually to determine which drivers are safe and which drivers are not.
Dr. Schler's testimony and opinions are taken as creditable and are accepted instead of the opinions of Dr. J. Waller. Dr. J. Waller's opinions and
information are out of date and out of step with the current state of the art in geriatrics.
Individual Performance Testing, Training and Evaluation
Harvey Leonard Sterns, Ph.D., currently holds three titles: 1) research professor of psychology at the University of Akron, Ohio, 2) Director, Institute for Life-Span Development and the Gerontology Fellow at the University of Akron, and 3) research professor of gerontology at Northeastern Ohio University College of Medicine. Dr. Sterns is an expert in the field of industrial gerontology.
Dr. Sterns has conducted research on driving as it relates to aging. The research conducted was keyed to the development of a diagnostic battery of tests to determine areas in which older drivers may have difficulty and to assist them with the training program so that they may perform at higher levels. This research also included an individual training approach which was modified in subsequent years in an attempt to attain maximum efficiency.
As a foundation for his research, Dr. Sterns identified three issues of observable approaches to the driving analysis which are called intrinsic predictors. These are 1) perceptual style, i.e., how people extract relevant and irrelevant information from the visual array; 2) selective attention, i.e., a measure of central processing ability that is highly predictive of incident involvement; and 3) perceptual motor reaction, i.e., dealing with simple and complex choices in complex reactions.
Dr. Sterns also researched the actual driving of a school bus in Alabama. In this research he examined the job of school bus driver from a task analysis perspective and observed first hand what was actually involved in driving the school bus.
Based on this experience Dr. Sterns believes that driving a school bus on a specified route is different than normal everyday driving because, for example, the school bus driver is clearly aware of problem situations coming up such as demanding intersections or curves or other areas of potential danger.
Dr. Sterns points out that school bus accidents are reported any time anything happens to the bus, including a bus getting stuck in the mud, scratched, or backed into a pole or into another bus. This is described in the literature as an "accident or a crash." The majority of accidents that we know about are property damage as opposed to accidents involving injury or fatalities.
Dr. Sterns stated that Dr. Julian Waller in his book Injury Events states that school bus safety is not a major safety problem because out of approximately twenty million children who are transported by school busy every year there are twenty fatalities.
School bus transportation may well be the safest form of transportation there is.
Dr. Sterns cites numerous authorities and studies done both in the United States and Europe which support his opinion that experience is a critical factor in the ability to safely drive a school bus.
Competency and skills involved in driving a school bus could be greatly enhanced by additional supervised on-the-road training experience together with training evaluations as opposed to using the age as criterion.
The job of driving a school bus involves much more than just driving. Dr. Sterns cites the Iowa 1986 data which contained eighteen fatalities and of those, three fatalities were actually on the bus. Therefore he believes that a check ride with passengers actually on the bus is an important part of the observation of the performance level of the school bus driver.
According to Dr. Sterns, the addition of the intrinsic performance evaluators which have relative predictive validity, such as selective attention, perceptual style and motor reaction time, together with enhanced training and on board evaluation of school bus drivers, is far superior to determining who a good employee performer might be as opposed to the use of any arbitrary chronological age.
It is Dr. Sterns' opinion that if it were necessary to be very conservative in the setting of standards for school bus drivers, one commonly used technique in industrial psychology is that of using the median of the young group. That is, taking the younger group of employees and determining their median standard of performance and using that median as the cut off score for any older person with the result that any older person performing below that median cutoff score would not be allowed to drive a school bus.
In metro transit authorities (public transportation), a method used to judge performance is to have a "checker" ride the bus as a passenger or follow in a car to see whether or not the bus driver is performing appropriately. This method would be of practical use in training school bus drivers as well.
Past driving record is predictive of future accident risk.
In a study of commercial drivers, performance training was demonstrated, with statistical significance, to reduce accident risk by approximately 16 percent.
Performance evaluation can appropriately exclude young drivers who have functional problems related to drug or alcohol use or neurological deficits.
Performance training has been developed and demonstrated to be effective at improving the performance level of both older and younger adult drivers.
Performance evaluation through "on board" check rides, a "follow car" procedure, or closely "monitoring" drivers can reduce accident risk, especially when such evaluation is based upon an accurate task analysis.
The 1969 Promisel Study as discussed by Dr. Sterns also relates the benefit of experience even for drivers who began to drive a school bus in their sixties, because even these drivers show an improvement in their driving ability with training and experience. The study also states on page 90 that there is no evidence to show that the severity of an accident is related to driver age and further that more than half or 50-60 percent of the difference that occurs in accident rate can be predicted only by factors other than age.
Performance evaluation over a period of several days, as occurs in Florida's public school bus driver licensing process, is more reliable in determining driver capability than the single-incidence licensing which is typical of the private, noncommercial licensing process.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.56(1), Florida Statutes.
At issue is the validity of Rule 6A-3.0141(1)(a) and (5)(a), Florida Administrative Code, which states in pertinent part:
At the time of initial employment the school board shall assure that the driver of a school bus meets the following requirements:
Is under seventy (70) years of age . . . .
* * *
At the time of reemployment or reappointment, the school district shall assure that the driver of a school bus meets the following requirements:
All the requirements of Rule 6A- 3.0141(1) and (3)(a), FAC.
102. The rule cites Sections 112.044(3), 120.55(1)(a), 234.02, 234.091, and 234.101, Florida Statutes, as the laws implemented by it. These sections state in relevant part:
112.044(3): PROHIBITED ACTIVITIES; EXCEPTIONS.-
(a) Except as provided in paragraph (f) it is unlawful for an employer to:
1. Fail or refuse to hire, discharge or mandatorily retire, or otherwise discriminate against any individual . . . because of age.
* * *
(f) It is not unlawful for an employer . . . to:
1. Take any action otherwise prohibited under paragraphs (a), (b), (c), or (e), based on a bona fide occupational qualification reasonably necessary to the normal operation of the particular business.
234.02: Maximum regard for safety and adequate protection of health shall be primary requirements which shall be observed by school boards in routing buses, appointing drivers, and providing and operating equipment, in accordance with all requirements of law and regulations of the state board.
* * *
234.091: Each school bus driver shall be of good moral character, of good vision and hearing, able-bodied, free from communicable diseases, mentally alert, and sufficiently strong physically to handle the bus with ease and to make emergency repairs, and he shall possess such other qualifications as are prescribed by the state board, and he shall hold a valid chauffeur's license issued by the Department of Highway Safety and Motor Vehicles.
234.101: (1) The State Board of Education shall adopt requirements which school bus drivers must meet prior to employment by district school boards.
* * *
This action is brought pursuant to Section 120.56(1):
Any person substantially affected by a rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority.
The standard to be applied is found in Section 120.52(8):
(8) "Invalid exercise of delegated legislative authority" means action which goes beyond the powers, functions, and duties delegated by the legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if anyone or more of the following apply:
* * *
The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(7);
The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; or
The rule is arbitrary or capricious.
Of further note in relation to the issues here are two statutes which codify the state's position on age discrimination. Section 112.044(1) states the legislative purpose behind Section 112.044(3), one of the sections implemented by the challenged rule.
Section 112.044(1) LEGISLATIVE INTENT;
PURPOSE.--The Legislature finds and declares that in the face of rising productivity and affluence, older workers find themselves disadvantaged, both in their efforts to retain employment and in their efforts to regain employment when
displaced from jobs. The setting of arbitrary age limits, irrespective of capability for job performance, has become a common practice, and certain otherwise desirable practices may work to the disadvantage of older persons.
In comparison to the incidence of unemployment among younger workers, the incidence of unemployment, especially long- term unemployment with resultant deterioration of skill, morale, and employer acceptability, is high among older workers, whose numbers are great and growing and whose employment problems are grave. In industries affecting commerce, the existence of arbitrary discrimination in employment because of age burdens commerce and the free flow of goods. It is the purpose of this act to promote employment of older persons based on ability rather than age and to prohibit arbitrary age discrimination in employment. [Emphasis Supplied]
Finally, Section 760.10(1)(a) and (8)(a) of the Human Rights Act of 1977 outlaws age discrimination with one pertinent exception:
It is an unlawful employment practice for an employer:
To discharge or to fail or refuse to hire any individual . . . because of such individual's . . . age . .
* * *
Notwithstanding any other provision of this section, it is not an unlawful employment practice under ss. 760.01-760.10 for an employer . . . to:
Take or fail to take any action on the basis of . . . age . . . in those certain circumstances in which . . .
age . . . is a bona fide occupational qualification reasonably necessary for the performance of the particular employment to which such action or inaction is related.
The Florida Supreme Court in Morrow v. Duval County School Board,
514 So.2d 1086 (Fla. 1987), invalidated the mandatory retirement of a teacher at age 70. In doing so, the Court found that Section 231.031 (the statute which contained the age 70 limitation) "should be read in pari materia with section
760.10 and section 112.044, in a manner that gives effect to the purposes of all three statutory provisions." Morrow at 1088. Further, the Court noted the similarity between Section 112.044, Section 760.10, and the federal Age Discrimination in Employment Act (ADEA), 29 U.S.C. Section 621 et seq., and stated:
The policy behind Florida's statute is similar to the policy behind the federal legislation, "to promote employment of
older persons based on their ability rather than age" and to "prohibit arbitrary age discrimination in employment." [Citations omitted] As remedial legislation, Florida's act should be liberally construed to promote its intended purpose.
The question here is whether the six words in the rule (a) enlarge, modify, or contravene the laws implemented; or (b) are arbitrary or capricious.
Clearly none of the statutes implemented mandate or even mention a mandatory retirement age for school bus drivers. In fact, Section 112.044(3) specifically outlaws such a mandatory retirement age unless it is shown that age is a bona fide occupational qualification (BFOQ). If Sections 112.044, 760.10, and the other statutes implemented are read in pari materia, the inescapable conclusion is that the rule enlarges and contravenes the laws implemented unless the BFOQ exception applies.
The leading case outlining the test for establishing a BFOQ is Western Air Lines Inc. v. Criswell, 472 U.S. 400, 105 S.Ct. 2743, 86 L.Ed.2d
321 (1985). Criswell utilized and crystallized the standard set forth in Usery
Tamiami Trail Tours Inc., 531 F.2d 224 (5th Cir. 1976). Summarized, the two pronged test requires
The job qualification must be reasonably necessary to the essence of the business. The greater the safety factor, the more stringent may be the job qualifications designed to ensure safe driving.
The age qualification must be something more than convenient or reasonable; it must be reasonably necessary to the particular business. The employer must be compelled to rely on age as a proxy for the safety-related job qualifications validated in the first inquiry.
Id. at 105 S.Ct. 2751. The second prong of the test may be satisfied in two ways.
The employer can establish a factual basis for believing that all or substantially all persons over the age qualification would be unable to perform safely and efficiently the duties of the job involved; or
The employer can establish that age is a legitimate proxy for the safety-related job qualifications by proving that it is impossible or highly impractical to deal with older employees on an individualized basis.
Id. at 105 S.Ct. 2751-52. Finally, the Court in Criswell specified that one way the employer can meet its burden under the second prong of the test is "to establish that some members of the discriminated-against class possess a trait precluding safe and efficient job performance that cannot be ascertained by
means other than knowledge of the applicant's membership in the class." Id. at
105 S.Ct. 2752. The Court also recognized that the BFOQ exception "was in fact meant to be an extremely narrow exception to the general prohibition" against age discrimination.
It is concluded from the evidence that an essential job qualification which is reasonably necessary is the physical and mental ability to safely drive a school bus. However, the Department did not carry its burden under the second prong of the test. The Department essentially proved only that data exists which shows a higher accident rate among all drivers over age 65.
In E.E.O.C. v. State of Mississippi, 837 F.2d 1398 (5th Cir. 1988), and in E.E.O.C. v. Commonwealth of Pennsylvania, 829 F.2d 392 (3rd Cir. 1987), it is made clear that before an employer can prove that all or substantially all persons over the age qualification would be unable to meet the standards of safe performance, the employer must develop, implement and enforce minimum standards of health and fitness that would justify the BFOQ. This threshold limits an employer's discretion in establishing a BFOQ defense. "Not only would a finding of minimum standards limit an employer's discretion, but also it. . . would ensure both that a good faith decision on required qualifications was made by a competent authority and that the use of age as a proxy was proper." Id. at P. 1401. In the Mississippi case, as here, the Court found that such minimum standards were not developed and therefore "there is no essential job qualification in this case that age can stand as a proxy for." Id. at 1402. Under such circumstances, the "BFOQ 'escape clause'" is not available. Id. at 1402.
Further, in the Pennsylvania case, the Court held that "before a characteristic can be a reasonably necessary BFOQ, it must be a trait that the employer at least attempts to require of employees of all ages." Here, the Department has not attempted to require of all school bus drivers that they belong to a class with a low accident rate. It is particularly noted that young drivers have similar accident rates to old drivers, yet a licensed driver could conceivably become a school bus driver in Florida at age 19, after five years of licensed driving including the learner's license issuable at age 14. Yet, the data analysis is clear that such young drivers have similar accident rates as drivers over age 65.
The only justification given by the Department for its use of age as job qualifications was in the form of statistical proof. In rejecting "statistical evidence indicating that there is a correlation between age and accident frequency," the Court in Maki v. Commissioner of Education, 568 F. Supp. 252 (N.D.N.Y. 1983), summarily affirmed, 742 F.2d 1437 (2d Cir. 1984), noted:
Regardless of the efficacy of these statistics, these reports, in and of themselves, are an insufficient showing "because an examination may reveal whether a job applicant possesses any of the passenger-endangering physical liabilities that many older people have. In other words, the correlation [between age and accident frequency] is to physical deficiencies, not to age per se." Usery v. Tamiami Trail Tours, Inc., supra, 531 F.
2d at 237.
Similarly, here the Department has failed to carry its burden of establishing that age per se may be used as a proxy based only on statistical evidence of age and accident rate. This is particularly so where the testimony of all the Department's witnesses specified a rise in age/accident rate at age 65, not 70. Hence no age was shown to be an appropriate proxy for the job qualification.
The Department also produced testimony by Dr. Julian Waller to support its position that it is impossible or highly impractical to deal with older employees on an individualized basis because there are not adequate physical and mental examinations which could effectively screen for traits that would preclude safe and efficient job performance. However, Dr. Waller's testimony was found to be less credible than the testimony of Dr. Schler wherein Dr. Schler identified the type and scope of examinations which could be practically, easily, and efficiently done to achieve the end of safe job performance by older school bus drivers.
Taken in its best light, the evidence adduced by the Department failed to meet the BFOQ standards and the BFOQ defense is rejected. The mandatory retirement age of 70 directly contravenes the law implemented, Section 112.044, and is an invalid exercise of delegated legislative authority pursuant to section 120.52(8)(c).
It is also concluded that the mandatory retirement age in the rule is arbitrary and is therefore an invalid exercise of delegated legislative authority under Section 120.52(8)(e). The rule is not reasonably related to the purpose of the enabling legislation and it is not appropriate to the ends specified in the legislative act. Agrico Chemical Co. v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1979). The clearly expressed legislative purpose of Section 112.044 is to prohibit arbitrary age discrimination and the use of arbitrary age limits. "An arbitrary decision is one not supported by facts or logic, or despotic." Id. at 763. The facts set forth in the competent substantial evidence in this case is that the age limit in the rule is arbitrary. In fact, the Department's own witness testified that the use of age 70 was arbitrary because the use of age 65 is better supported by the statistical accident rate data. There is simply no factual evidence to show that age 70, as opposed to 65 or 68 or 71 or 75 is appropriate and is reasonably related to the legislative purpose.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Thaw, it is ORDERED that Rule 6A-3.0141(1)(a) , Florida Administrative Code, which
states "Is under seventy (70) years of age," constitutes an invalid exercise of
delegated legislative authority.
DONE and ORDERED this 14th day of December, 1988, in Tallahassee, Florida.
DIANE K. KIELSLING
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 1988.
APPENDIX TO FINAL ORDER, CASE NO. 88-0847RX
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case.
Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Florida Education Association/United
Each of the following proposed findings of fact are adopted in substance as modified in the Final Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-7(60-66); 8-17(68-77); 18(68); 19-26(79-86); 27-31(88-92); 38(98); 41-52(47-58); 54(59); 75(10); 83(13); 88(20); 89(21); 91(22); 95(23); 96-98(27- 29); 102-106(41-45); and 110 & 111(27)
Proposed findings of fact 32 and 33 are irrelevant.
3. Proposed findings of fact 34-37, 39, 40, 53, 55, 56, 90,
112, and 113 are unnecessary.
4. Proposed findings of fact 57-74, 76-82, 84-87, 92-94, 99- 101, and 107-109 are subordinate to the facts actually found in this Final Order.
5. Proposed findings of fact 114-116 are rejected as being unsupported by the competent, substantial evidence. Specifically, the exhibits cited were not admitted in evidence.
Specific Rulings on Proposed Findings of Fact Submitted by Intervenor, Florida Teaching Profession/National Education Association
Each of the following proposed findings of fact are adopted in substance as modified in the Final Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-9(1-9); 10(11); 11(12); 13(64); 14(72); 15(67); 16 & 17(68); 18(70); 19-23(93-97); 26(99); 27(86); and 36 & 37(46)
Proposed findings of fact 12, 24, 25, 28-33, and 35 are
subordinate to the facts actually found in this Final Order. 3. Proposed finding of fact 34 is unnecessary.
4. Proposed finding of fact 38 is unsupported by the competent, substantial evidence. Specifically it makes reference to an exhibit not admitted in evidence.
Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Education
Each of the following proposed findings of fact are adopted in substance as modified in the Final Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 8(3); 11-16(13-18); 18-20(19); 21(23); 25-32(27-34); 34-39(35-40); 51(60); 53(79); and 54(47).
Proposed findings of fact 1, 3-7, 10, 22, 23, 33, 43-43 and
48 are subordinate to the facts actually found in this Final Order.
Proposed findings of fact 2 and 9 are unnecessary.
Proposed findings of fact 17, 44-46, and 56 are irrelevant.
Proposed findings of fact 40, 47, 49, 50, 52, 55, and 57-60 are unsupported by the competent, substantial evidence.
COPIES FURNISHED:
Lorene C. Powell Assistant General Counsel FEA/United
208 West Pensacola Street Tallahassee, Florida 32301
Carl J. Zahner Carolyn S. Holifield
Assistant General Counsels Department of Education Knott Building
Tallahassee, Florida 32399
Vernon T. Grizzard Attorney at Law
116 South Monroe Street Tallahassee, Florida 32301
Liz Cloud, Chief
Bureau of Administrative Code 1802 The Capitol
Tallahassee, Florida 32301
Carroll Webb, Executive Director Administrative Procedure Committee
120 Holland Building Tallahassee, Florida 32301
Honorable Betty Castor Commissioner of Education The Capitol
Tallahassee, Florida 32399-0400
NOTICE OF RIGHT TO JUDICIAL REVIEW
A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER 15 ENTITLED, TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FINDING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
| Issue Date | Proceedings |
|---|---|
| Dec. 14, 1988 | Final Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 14, 1988 | DOAH Final Order | Rule mandating retirement age for school bus drivers invalid because not a Bona Fide Occupational Qualification and it contravenes laws against age discrimination. Arbitrary. |
MIAMI-DADE COUNTY SCHOOL BOARD vs BARBARA A. ROBERTS, 88-000847RX (1988)
GRANT L. LESTER, A/K/A G. L. LESTER vs DUVAL COUNTY SCHOOL BOARD, 88-000847RX (1988)
EURETHA L. DAVIES vs LAIDLAW EDUCATION SERVICES, 88-000847RX (1988)
HERNANDO COUNTY SCHOOL BOARD vs RAYMOND HENDERSON, 88-000847RX (1988)
PALM BEACH COUNTY SCHOOL BOARD vs JEAN GAILLARD, 88-000847RX (1988)
