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Ex-teacher argues to keep suit going against Alamance-Burlington Schools

Times-News - 1/18/2019

Jan. 17--A former elementary school teacher is pushing back on an Alamance-Burlington School System motion to throw out her lawsuit under the Americans with Disabilities Act claiming she was fired over caring for her seriously ill son.

Theresa Schmitz sued ABSS in October, saying Sylvan Elementary School violated her rights under the ADA by retaliating against her as she tried to get time off to care for her disabled son, complaining to human resources and forcing her to resign.

In December, ABSS moved for summary judgment, basically asking the U.S. District Court for the Middle District of North Carolina to throw the suit out, saying Schmitz failed to show she was entitled to ADA protection because she had not made a claim under standard protections for those associated with disabled individuals.

But in her filing Tuesday, Jan. 15, Schmitz points to a Fourth Circuit Court of Appeals opinion saying an employer did not have the right to fire a woman because her employer believed she would have to take additional time off work to care for her son, even though in the end, the court did not rule in favor of the mother in that case.

Schmitz also points to provisions in the guidance of enforcing the ADA, saying employers can't discriminate against caretakers for taking time off to care for the disabled.

Even if she wasn't entitled to time off to care for her son, according to the court filing, Schmitz was entitled to negotiate for that time without retaliation from her superiors, and to be treated like other ABSS employees making similar requests.

Complaints

The bad news about Schmitz's son came weeks after Schmitz started at Sylvan Elementary School in October of 2016, according to her lawsuit she filed against the Alamance-Burlington Board of Education and ABSS in federal court. That November, her minor son 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 by 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 leave in half days and be paid for half days to continue to leave work early, something other ABSS employees were not forced to do, Schmitz claims. She did that through the holidays and went back to a regular schedule in January 2017.

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."

The district argued Schmitz can't claim protection under the ADA because she did not show she had suffered any "adverse employment actions" as a result her role as a caretaker of someone with a disability.

Schmitz contends that her principal retaliated against her for complaining to Human Resources about him retaliating against her for taking time off to care for her son. That retaliation, she contends, included disciplining her for things that were proper procedure and for which other teachers were not punished, like reading work-related email at work, using the bathroom, sending students to the principal's office, and putting her on what she is calling a "bogus" performance improvement program that she claims contained "misstated facts" and held her to standards not required of other employees, putting her employment in jeopardy.

Schmitz pushes back against the ABSS assertion that she had not claimed the PIP was undeserved, and therefore was not adverse, by alleging Jan. 15 that her work performance was satisfactory, including quotes from positive performance reviews Gould wrote, and asserting that she did originally claim the PIP was unwarranted when she called it an act of retaliation in her original complaint.

Repeating her claim that she was basically fired, she calls it a "Hobson's choice" between resigning or being fired, and points to a number of legal precedents showing that choice is no choice at all and therefore is the same as being fired, which is by definition, according to her filing, an "adverse employment action."

ABSS said Schmitz failed to show she was forced out because she merely claimed that she should sign a pre-written resignation letter or be "put on a list she did not want to be on," which, according to ABSS, is too vague to be a threat if she didn't explain what that list was. In her motion Tuesday, Schmitz calls it "presumably a list of terminated employees or employees who were not eligible for hire within the state's public-school system," according to the motion.

If the alleged threat was not real, that would constitute deception, which also is grounds to show she was forced out, according to the 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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