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Alamance-Burlington Schools wants ex-teacher's lawsuit tossed

Times-News - 12/27/2018

Dec. 27--GRAHAM -- The Alamance-Burlington School System is asking a federal court to throw out a lawsuit from a former Sylvan Elementary School teacher on grounds that she has no standing under the Americans with Disabilities Act.

Theresa Schmitz sued ABSS in October, saying Sylvan Elementary School violated her rights under the ADA by not letting her leave school 45 minutes early every day to care for her disabled son, retaliating against her for complaining, and forcing her to resign.

While the ADA protects people associated with the disabled, according to the ABSS motion to dismiss, the purpose is to keep employers from discriminating based on unfounded stereotypes, like firing someone with a disabled spouse to keep the spouse off the company's health plan, or pushing out a blood relative of someone with a genetic disease out of fear that the employee has it, too, and Schmitz does not make any such claims.

Son's condition

The bad news about Schmitz's son came weeks after she started at Sylvan Elementary School in October 2016, according to the lawsuit she filed in October against the Alamance-Burlington Board of Education and ABSS in U.S. District Court for the Middle District of North Carolina. That November, her son, a minor, was diagnosed with a brain tumor and rare genetic disorder, leaving him disabled and needing care.

Schmitz claims Sylvan Principal Mark Gould retaliated against her when she asked to leave school 45 minutes early for a second week in a row to take care of a disabled child, and complained about him to ABSS human resources for criticizing her work, putting her on a performance improvement program, and forcing her out at the end of the year.

Human resources, according to the suit, told Schmitz at the end of 2016 she would have to take her leave in half-days and be paid for half-days to continue to leave work early. She did that through the holidays and went back to a regular schedule in January 2017. She was not prohibited from leaving early, the ABSS filing points out.

Near the end of the school year, according to Schmitz's suit, she met with human resources and Gould, and was presented with a resignation letter and told she should sign it or be "on a list she did not want to be on."

More time asked

To claim associational discrimination or retaliation, according to the ABSS motion, Schultz would have to show "adverse action," and she does not. Working a full day, for example, is a condition of employment, according to the motion, and Schmitz does not state that the performance improvement plan she had to follow was unwarranted or unhelpful, just that it involved a lot of "busy work." She also does not say in her suit specifically who gave her the resignation letter, or even whether she signed it or how she left ABSS employment -- undermining her claim that she was effectively fired.

Showing she was forced to resign would require proving ABSS deceived or coerced her, according to the motion, and she does not claim deception. Schmitz's claims of coercion fall short, too, according to ABSS, because her claims don't show an effort to make her work situation intolerable, just not free of stress.

The ABSS motion quotes the U.S. Court of Appeals for the Fourth Circuit: "Every job has its frustrations, challenges and disappointments; these inhere in the nature of work."

Schmitz has asked for additional time to reply to the ABSS motion.

Reporter Isaac Groves can be reached at igroves@thetimesnews.com or 336-506-3045. Follow him on Twitter at @tnigroves.

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(c)2018 Times-News (Burlington, N.C.)

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