Failure To Return To Work Or Provide Estimated Return Date Doomed Teacher’s ADA Disability Bias Claim

A teacher who was fired because she did not return to work following the expiration of her Family and Medical Leave Act (FMLA) leave and failed to provide an estimated return date could not advance her disability bias claim since there was insufficient evidence that the discharge decision was pretextual, ruled the Fifth Circuit in Owens v Calhoun County Sch Dist. (12-60897). The Fifth Circuit also affirmed summary judgment against her on her First Amendment claim that she was fired in retaliation for requesting educational support for her son since her speech was not a matter of public concern.

Indefinite leave. The elementary teacher had suffered from neck and back pain for a number of years. When her medical problems intensified in the fall of 2009, she took FMLA leave in October to undergo surgery. On Jan. 20, 2010, the principal telephoned her and inquired as to when she planned to return to work. The teacher replied that she had a doctor’s appointment on February 12 and might be able to return to work on February 15 if her doctor released her.

On February 2, the superintendent sent her a letter warning her that her FMLA leave would soon expire and asking that that she provide him with a return date so that her employment status could be determined. Meanwhile, he heard rumors that she was planning to move to Arkansas with her husband. Two days later, the principal again telephoned the teacher and asked when she would be returning. The teacher did not give a specific date, but reiterated that she had a doctor’s appointment on either February 12 or 15. On February 9, the superintendent sent the teacher written notification that she had been terminated because she failed to return to work before her FMLA leave expired on February 1 and did not provide the district with a date for her return.

The teacher unsuccessfully appealed her termination to the school board. The board ruled that her sick leave—including FMLA—was exhausted, and that she was negligent in failing to inform the school district of when she would return to work or submitting any documentation evidencing her release to return to work. The board also found that while she had been on leave, she had worked part time for another school and completed six semester hours of graduate coursework.

Teacher’s “speech.” During the same timeframe, the teacher had been attempting to secure educational support for her son. Although some of his teachers thought he should receive assistance, the superintendent vetoed the plan that would provide him with services. On Jan. 27, 2010, the teacher wrote a letter to the Teacher Support Team (TST) requesting that her son be provided with educational support services. After also expressing her concerns to the school principal, she met with the state’s Department of Education to complain about the district’s failure to provide her son with adequate educational support. The DOE subsequently ordered the district to provide her son with educational support.

District court proceedings. The teacher filed the instant action, alleging several claims, including ADA disability bias and First Amendment retaliation. The district court granted the district’s motion for summary judgment as to all claims. Regarding her ADA claim, the court held that she failed to refute the district’s legitimate nondiscriminatory reason for her discharge. Regarding her First Amendment claim, it held that she spoke on a matter of private concern.

No pretext showing. Assuming without deciding that the teacher established a prima facie case of disability bias, the Fifth Circuit held that summary judgment was warranted because she failed to present sufficient evidence from which a jury could find that the district’s reasons for her termination were pretextual. To the contrary, the record was replete with evidence that she was fired for reasons other than her disability. For instance, she admitted that she did not return to work before her FMLA leave expired and failed to present evidence that she told the district a date when she would return to work. Rather, she relied on a phone conversation with her principal, during which she merely stated that she had an upcoming doctor’s appointment and thought she would be released to return to work then. This evidence failed to establish pretext as she could not state with any certainty when she could return to work.

The teacher also never gave the district any documentation indicating that she was cleared to work. Although she testified at her termination hearing that she was physically capable of working, the school board’s finding focused on the absence of a doctor’s release, which the teacher failed to ever provide. Moreover, the record revealed that she had worked part time for another school district while on leave. Although she claimed that this other work was of a limited duration and that she was able to sit throughout the testing, she still engaged in more activity for the other school district. Finally, she did not deny that she attended multiple educational conferences while on leave, which enabled her to receive credit for six hours of graduate coursework. Accordingly, because the teacher failed to present any evidence to suggest that she was fired for any reason other than that listed by the district, summary judgment was warranted.

Speech not “public concern.” The Fifth Circuit also affirmed summary judgment against the teacher on her First Amendment claim asserting that she was fired in retaliation for attempting to secure educational support for her son. Notably, the teacher conceded that her speech was not on a matter of public concern, but contended that she was still entitled to protection under the First Amendment. The Fifth Circuit found her argument unpersuasive since it is well-established that the First Amendment protects a public employee’s speech in cases of alleged retaliation only if the speech addresses a matter of public concern. Here, the teacher’s speech dealt with securing educational support services for her son, which was clearly not a matter of public concern.

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