SCHMITZ v. ALAMANCE-BURLINGTON BOARD OF EDUCATION

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

THERESA SCHMITZ, )

)

Plaintiff, )

)

v. ) 1:18CV910

)

ALAMANCE-BURLINGTON BOARD )

OF EDUCATION, d/b/a ALAMANCE- )

BURLINGTON SCHOOL SYSTEM, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

Before this court is Defendant’s Motion to Dismiss, (Doc.

8), pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a

claim upon which relief may be granted. Plaintiff is a former

elementary school teacher employed by Defendant, the Alamance-

Burlington Board of Education. Plaintiff’s complaint includes

three counts: (1) associational discrimination under the

Americans with Disabilities Act (“ADA”); (2) retaliation under

the ADA; and (3) wrongful termination in violation of North

Carolina Public Policy. (Complaint (“Compl.”) (Doc. 5).)

Defendant filed a Brief in Support of its Motion to Dismiss,

(Doc. 9), and Plaintiff filed a Response and then an Amended

Memorandum of Law in Opposition to Defendant’s Motion to

Dismiss, (Docs. 13, 14). The issue is now ripe for ruling. For

the reasons set forth herein, this court will grant Defendant’s

motion as to Counts Two and Three, but will deny the motion as

to Count One.

I. FACTUAL AND PROCEDURAL BACKGROUND

The following facts are alleged in the complaint and taken

as true.

A. Factual Background

Theresa Schmitz (“Plaintiff”) is a resident of Wake County,

North Carolina. (Compl. (Doc. 5) ¶ 3.) The Alamance-Burlington

Board of Education (“Defendant”) is a corporate body solely

based and operating in Alamance County, North Carolina. (Id.

¶ 4.) Defendant employs more than 500 employees and is a covered

entity under the ADA. (Id. ¶ 5.) This court has jurisdiction

pursuant to 28 U.S.C. §§ 1343(a)(4) and 1367. Venue is proper in

this district pursuant to 28 U.S.C. § 1391(b)(1).

Defendant hired Plaintiff in late October 2016 to teach

fourth grade at an elementary school in Snow Camp, North

Carolina. (Id. ¶ 6.) Plaintiff alleges that she performed

satisfactorily throughout her first months, receiving positive

feedback. (Id. ¶ 7.) In November 2016, her son was diagnosed

with a brain tumor and required emergency surgery. (Id. ¶ 8.)

Plaintiff alleges she returned to work on November 29, 2016,

after her son’s surgery on November 23. (Id.) Plaintiff’s son

was diagnosed with neurofibromatosis Type 1 (“NF1”), a disease

also known as von Recklinghausen’s Disease. (Id. ¶ 9.) NF1 is a

rare genetic disorder that causes tumors and growths in certain

parts of the body; it negatively affected Plaintiff’s son’s

ability to see, think, and learn. (Id.) Plaintiff’s son was

unable to walk or care for himself following surgery. (Id.)

Plaintiff’s son requires regular screenings and chemotherapy as

a result of the disease. (Id.)

After returning to work on November 29, Plaintiff asked her

Principal, Mark Gould, for permission to leave work at 2:30 p.m.

each day to care for her son. (Id. ¶ 11.) Though classes ended

at 2:30 p.m., teachers were expected to stay until 3:15 p.m.

each day. (Id.) Principal Gould allowed Plaintiff to leave at

2:30 p.m. for one week, from November 29 until December 5. (Id.)

On or about December 5, Plaintiff took her son to the

doctor to have his stitches removed; at that appointment, the

doctor informed Plaintiff that her son would not be able to

return to school for several weeks. (Id. ¶ 12.) Plaintiff

emailed Principal Gould following that meeting, explaining the

situation and asking for permission to leave at 2:30 p.m. for

another week. (Id. ¶ 13.) Principal Gould responded that he

could not talk about it at that moment because he was busy, but

that he would discuss it with Plaintiff the next day. (Id.)

Plaintiff never heard from Principal Gould, but she still left

2:30 p.m. the next day, December 6. (Id. ¶ 14.) Later that day,

Principal Gould emailed Plaintiff to ask why she had not been at

bus duty at 2:30 p.m. that day. (Id.) “Plaintiff replied that

she had explained her situation with her son and thought it was

okay to leave at 2:30 p.m. When she received no response back,

she became very concerned.” (Id.) Plaintiff told Principal Gould

that she would not be at work on December 7. (Id.)

On December 7, Plaintiff contacted Defendant’s human

resources (“HR”) department to explain the situation with her

son and to express concern that Principal Gould was “bullying

her and retaliating against her for caring for her disabled

son.” (Id. ¶ 15.) The HR department responded that day and told

Plaintiff she was not permitted to leave at 2:30 p.m., but

instead would have to take leave in half-day increments. (Id.

¶ 16.) Plaintiff alleges she asked HR why she could not work

until 2:30 and have her pay prorated for the final forty-five

minutes of the day, but she received no response. (Id.)

Plaintiff alleges that she was treated differently in this

regard, because “other employees not associated with a disabled

family member were regularly permitted to take sick leave in

less-than-half-day increments on temporary bases.” (Id. ¶ 30.)1

Still, Plaintiff complied with HR’s instruction and took leave

in half-day increments from December 5 until December 16. (Id.

¶ 16.) After December 16, 2016, Plaintiff alleges she did not

request, nor did she take any other time off to care for her

son. (Id.)

Plaintiff alleges that Principal Gould began a course of

retaliation against her starting in mid-December 2016 and

carrying into February 2017. (Id. ¶ 17.) This alleged

retaliation, which Plaintiff characterizes as “nitpicking,”

allegedly resulted in Plaintiff being held to a higher standard

than other teachers. (Id. ¶ 18.) Plaintiff was placed on a

performance improvement plan (“PIP”) on or about March 14, 2017.

(Id. ¶ 20.) Plaintiff alleges this PIP entailed a lot of busy

work, was based on misstated facts about her performance, and

was another example of how she was held to a higher standard

than other teachers. (Id. ¶¶ 20–21.)

Nonetheless, Plaintiff successfully completed her PIP. (Id.

¶ 21.) Plaintiff also alleges she was performing satisfactorily

1 It is unclear from Plaintiff’s allegations if this

practice of allowing others to take leave in less than half-day

increments continued after Plaintiff’s permission to do so

ended. It is also unclear what constituted a “temporary basis,”

as Plaintiff was allowed to leave at 2:30 p.m. for approximately

one week.

in April 2017; to support this contention, Plaintiff excerpts

the following portion from one of her performance reviews:

[Ms. Schmitz] has very capably taught math, reading,

social studies, and science.

Ms. Schmitz is to be commended for her professionalism,

concern for her students, and quality of instruction.

She plans well and works diligently at being organized.

Her preparation each day is thorough and the results,

evident. Her assignments and assessments are

well-conceived, quickly corrected, and promptly

returned. I have found Ms. Schmitz to be uniquely

resourceful and adaptive.

Student respect is obvious in her classroom. She

deeply cares about her students and they look to her

for approval and guidance. Her approach to teaching

has generated a warm and close rapport with her

classes as well as our faculty.

Ms. Schmitz has the skills to be an outstanding

teacher. . . .

(Id. ¶ 22.) Plaintiff alleges that the report was written at

some point during April 2017. (Id.)

Despite those positive developments, on May 12, 2017,

Plaintiff was called into a meeting with Principal Gould and HR.

(Id. ¶ 23.) Waiting for her in the meeting was a pre-drafted

letter of resignation for her to sign, effective at the end of

the school year. (Id.) Plaintiff was told to sign the letter, or

she would be “put on a list she did not want to be on.” (Id.)

Plaintiff alleges this list was “presumably a list of terminated

employees or employees who were not eligible for hire” within

North Carolina’s school systems. (Id.) Plaintiff was told she

had to sign and “turn in” the letter. (Id.) Plaintiff does not

expressly allege that she signed the letter, but she does allege

that she was “forced to resign,” (id. ¶ 30), and that she was

“constructively terminated,” (id. ¶ 24).

Plaintiff alleges she was retaliated against in the form of

changes to her schedule and responsibilities, being placed on a

PIP, being forced to resign, and other, smaller acts. (Id.

¶ 30.)

B. Procedural History

Plaintiff filed a timely Charge of Discrimination with the

Equal Employment Opportunity Commission (“EEOC”) and received a

right-to-sue letter on July 14, 2018, or later. (Compl. (Doc. 5)

¶ 26.) Plaintiff filed suit in the Superior Court of Guilford

County, North Carolina, on October 5, 2018. (Id. at 1.) The

complaint contains three counts. First, Plaintiff claims she was

discriminated against because of her association with her

disabled son. (Id. ¶¶ 27-31.) Plaintiff alleges that the

discriminatory acts included disparate treatment and termination

“because of anticipated future leave requirements.” (Id. ¶ 30.)

Second, Defendant claims she was retaliated against for opposing

activity she reasonably believed to be in violation of the ADA.

(Id. ¶¶ 33–37.) Third and finally, Plaintiff brings a state law

claim, alleging that her termination was in contravention of the

public policy of North Carolina as stated in N.C. Gen. Stat.

§§ 143-422.2, 95-28.1A, and 115C-302.1, as well as 16 N.C.

Admin. Code § 6C.0402. (Id. ¶¶ 38–42.)

Defendant timely removed the complaint to this court on

October 30, 2018. (Petition for Removal (Doc. 1).) Defendant

filed a Motion to Dismiss, (Doc. 8), pursuant to Fed. R. Civ. P.

12(b)(6) for failure to state a claim, (Doc. 8), as well as a

supporting brief. (Def.’s Mem. of Law in Supp. of Mot. to

Dismiss (“Def.’s Br.”) (Doc. 9).) Plaintiff filed a response in

opposition to the motion to dismiss, (Doc. 13), and then quickly

filed an amended response. (Am. Mem. of Law in Opp’n to Def.’s

Mot. to Dismiss (“Pl.’s Am. Resp.”) (Doc. 14).) Defendant did

not file a reply.2

II. STANDARD OF REVIEW

To survive a Rule 12(b)(6) motion, “a complaint must

contain sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

2 While the court does not encourage lengthy briefing, the

absence of a reply in this case causes some difficulty with the

analysis. Plaintiff has adduced a number of facts in her

response that present different issues from those in the

original motion.

Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its

face if “the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is

liable” and demonstrates “more than a sheer possibility that a

defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (citing

Twombly, 550 U.S. at 556–57). When ruling on a motion to

dismiss, this court accepts the complaint’s factual allegations

as true. Iqbal, 556 U.S. at 678. Further, this court liberally

construes “the complaint, including all reasonable inferences

therefrom, . . . in plaintiff’s favor.” Estate of Williams-Moore

v. All. One Receivables Mgmt., Inc., 335 F. Supp. 2d 636, 646

(M.D.N.C. 2004) (citation omitted). This court does not,

however, accept legal conclusions as true, and “[t]hreadbare

recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

ADA associational discrimination and retaliation claims

utilize the McDonnell-Douglas framework when claimants lack

direct evidence of discrimination or retaliation. See Reynolds

v. Am. Nat’l Red Cross, 701 F.3d 143, 155 (4th Cir. 2012);

Stansberry v. Air Wis. Airlines Corp., 651 F.3d 482, 487 (6th

Cir. 2011); Ennis v. Nat’l Ass’n of Bus. & Educ. Radio, Inc., 53

F.3d 55, 58 (4th Cir. 1995). Complaints raising ADA causes of

action must meet the Twombly/Iqbal plausibility standard; a

plaintiff is not required to make out a prima facie case of

discrimination or retaliation or satisfy any heightened pleading

requirements at the motion to dismiss stage. See Swierkiewicz v.

Sorema N.A., 534 U.S. 506, 511 (2002); McCleary-Evans v. Md.

Dep’t of Transp., 780 F.3d 582, 584–85 (4th Cir. 2015). The

plaintiff need only plead facts that permit the court to

reasonably infer each element of the prima facie case. See

McCleary-Evans, 780 F.3d at 585; see also Coleman v. Md. Ct.

App., 626 F.3d 187, 191 (4th Cir. 2010) (stating, in the Title

VII context, that a complaint must “assert facts establishing

the plausibility” that plaintiff was terminated based on race).

III. ANALYSIS

The court addresses each of Plaintiff’s three claims in

turn, finding that Plaintiff has only plausibly alleged a claim

for associational discrimination under the ADA. Plaintiff has

failed to plausibly allege her claims for retaliation under the

ADA or wrongful termination under North Carolina public policy.

A. Count One: Associational Discrimination

Plaintiff’s first claim is that Defendant discriminated

against her under the ADA’s associational discrimination

provision. (Compl. (Doc. 5) ¶¶ 27–31.) Plaintiff claims she was

discriminated against because (1) she was treated differently in

the way she was allowed to take leave, and (2) she was

terminated based on Defendant’s unfounded beliefs about her

future availability for work. (Id. ¶ 30.) Defendant argues, in

support of its motion to dismiss, that Plaintiff did not

plausibly allege an adverse employment action, and, even if

plausible, her associational discrimination claim does not fit

any of the traditional associational discrimination molds.

(Def.’s Br. (Doc. 9) at 7, 17.) Because Plaintiff has alleged

sufficient facts to plausibly support her ADA associational

discrimination claim, Defendant’s motion to dismiss on that

count will be denied.

The ADA’s association provision prohibits discrimination

“because of the known disability of an individual with whom the

qualified individual is known to have a relationship or

association.” 42 U.S.C. § 12112(b)(4). Congress added the

association provision to “protect qualified individuals from

adverse job actions based on unfounded stereotypes and

assumptions arising from the employees’ relationships with

particular disabled persons.” Freilich v. Upper Chesapeake

Health, Inc., 313 F.3d 205, 215 (4th Cir. 2002) (quoting

Oliveras–Sifre v. P.R. Dep’t of Health, 214 F.3d 23, 26 (1st

Cir. 2000)).

Associational discrimination under the ADA is defined as

“excluding or otherwise denying equal jobs or benefits to a

qualified individual because of” their association with a

disabled person. 42 U.S.C. § 12112(b)(4). “[T]he association

provision prohibits an employer from, inter alia, refusing to

hire a job applicant because of the employer’s unfounded belief

‘that the applicant would have to miss work or frequently leave

work early in order to care for [a disabled relative].’” Erdman

v. Nationwide Ins. Co., 582 F.3d 500, 510–11 (3d Cir. 2009)

(quoting 29 C.F.R. § 1630.8, App.).3 “Other courts [including the

Fourth Circuit] have surmised that an employee would be

protected by the association provision if she were fired because

her employer feared she might miss work to care for a disabled

relative . . . .” Id.

In order to make out a claim for associational

discrimination under the ADA, a plaintiff must establish four

elements:

3 Defendant argues that Plaintiff’s claim does not fit any

of the three associational discrimination models as laid out by

Judge Posner in Larimer v. Int’l Bus. Machs. Corp., 370 F.3d

698, 701 (7th Cir. 2004). Though Plaintiff’s claim arguably fits

the third “distraction” model, the point is irrelevant —

Plaintiff’s claim need not fit into one of Judge Posner’s

categories. See Stansberry, 651 F.3d at 487 (“[T]he three

theories articulated in Larimer are not necessarily an

exhaustive list . . . .”); see also Tyndall v. Nat’l Educ.

Ctrs., Inc. of Cal., 31 F.3d 209, 214 (4th Cir. 1994) (noting

that an associational claim can exist where an employer

terminates an associated employee for unfounded beliefs about

future absences).

(1) she was associated with an individual with a

disability as defined by the ADA and that her employer

had knowledge of that association; (2) she suffered an

adverse employment action; (3) at the time of such

action, she was performing her job at a level that met

her employer’s legitimate expectations; and (4) the

adverse employment action occurred under circumstances

that raise a reasonable inference of unlawful

discrimination.

Macher v. Highland Trace Apartments, Civil Action No. 3:17-cv-

00682-RJC-DSC, 2018 WL 7247138, at *3 (W.D.N.C. July 23, 2018),

report and recommendation adopted, No. 3:17-cv-00682-RJC-DSC,

2019 WL 464970 (W.D.N.C. Feb. 6, 2019) (citing Ennis, 53 F.3d at

58). Because the statutory definition of associational

discrimination is defined as “excluding or otherwise denying

equal jobs or benefits to a qualified individual because of”

their association with a disabled person, the test in Ennis is

similar to those recognized by other circuits. See Graziadio v.

Culinary Inst. of Am., 817 F.3d 415, 432 (2d Cir. 2016);

Stansberry, 651 F.3d at 487; Larimer, 370 F.3d at 701; Hilburn

v. Murata Elecs. N. Am., Inc., 181 F.3d 1220, 1230–31 (11th Cir.

1999); Den Hartog v. Wasatch Acad., 129 F.3d 1076, 1085 (10th

Cir. 1997).

Other than the first element, about which there appears to

be no serious contention,4 the court addresses each element in

4 See Def.’s Br. (Doc. 9) at 7–24; Compl. (Doc. 5) ¶¶ 11–16.

turn, finding that Plaintiff has plausibly alleged a claim of

associational discrimination.

1. Second Element: Plaintiff was Subjected to an

Adverse Employment Action

Defendant contends that none of the alleged actions by

Defendant or Principal Gould qualify as “adverse employment

actions” for the purpose of an associational discrimination

claim. (Def.’s Br. (Doc. 9) at 7.) Plaintiff stakes her

associational discrimination claim on three alleged actions by

Defendant: (1) changes to her schedule and responsibilities, (2)

being placed on a PIP, and (3) being forced to resign.5 (Compl.

(Doc. 5) ¶ 30.) Because the court finds that Plaintiff has

plausibly alleged that she was constructively discharged, the

court only addresses that ground and will address others at a

later stage, or trial, as necessary.

The Fourth Circuit analyzes adverse employment actions

under the ADA using the same framework as in Title VII cases.

See, e.g., Adams v. Anne Arundel Cty. Pub. Sch., 789 F.3d 422,

5 Defendant argues that Plaintiff’s complaint fails first

because she neglects to even allege that she resigned or was

terminated. (Def.’s Br. (Doc. 9) at 10 (“Plaintiff does not

allege that she was terminated by the Defendant.”).) Though

spread throughout the complaint, Plaintiff does, in fact, allege

that she resigned her position and/or was terminated. (Compl.

(Doc. 5) ¶¶ 30, 31, 35, 39.) While this allegation may be

inartfully pled, it is, nevertheless, pled.

431 (4th Cir. 2015). A discharge qualifies as an adverse

employment action. Strothers v. City of Laurel, 895 F.3d 317,

328 (4th Cir. 2018). Beyond termination, courts have also

applied the doctrine of constructive discharge to instances

where an employee resigned. See, e.g., Stone v. Univ. of Md.

Med. Sys. Corp., 855 F.2d 167, 174 (4th Cir. 1988) (discussing

constructive discharge in the Section 1983 due process context);

see also Corbin v. Fed. Express, Action No. 4:15cv139, 2017 WL

4485899, at *8 (E.D. Va. May 19, 2017), aff’d, 717 F. App’x 319

(4th Cir. 2018), cert. denied, ____ U.S. ____, 139 S. Ct. 232

(2018) (noting the Fourth Circuit’s use of Stone’s constructive

discharge reasoning in the Title VII context). A constructive

discharge is a facially voluntary resignation that is actually

“so involuntary that it amounted to a constructive discharge

. . . .” Stone, 855 F.2d at 173. There are two situations where

courts have found a constructive discharge occurred when the

employee resigned: “(1) where obtained by the employer’s

misrepresentation or deception, and (2) where forced by the

employer’s duress or coercion.” Id. at 174. In both situations,

the overarching question is whether the employee was essentially

without any free choice. Id.

Plaintiff argues that the resignation letter could be

classified as either an act of coercion or misrepresentation.

(Pl.’s Am. Resp. (Doc. 14) at 13.) Because the court finds that

Plaintiff has plausibly alleged that she was constructively

discharged under a coercion theory, it addresses only that

analysis.

“Under the duress/coercion theory, a resignation may be

found involuntary if on the totality of circumstances it appears

that the employer’s conduct in requesting resignation

effectively deprived the employee of free choice in the matter.”

Stone, 855 F.2d at 174 (internal quotation marks omitted). In

analyzing the totality of the circumstances, the court must

objectively assess whether “real alternatives” to resignation

were offered. Id. (noting that an employee’s subjective concerns

about her reputation would be irrelevant to the analysis). The

Stone court laid out a non-exhaustive list of factors to

consider when assessing the voluntariness of a resignation, to

include: “(1) whether the employee was given some alternative to

resignation; (2) whether the employee understood the nature of

the choice [s]he was given; (3) whether the employee was given a

reasonable time in which to choose; and (4) whether [s]he was

permitted to select the effective date of resignation.” Id.

However, if an employee “can show that the [employer] knew that

the reason for the threatened removal could not be

substantiated, the threatened action by the agency is purely

coercive.” Schultz v. U.S. Navy, 810 F.2d 1133, 1136 (Fed. Cir.

1987); see also Stone, 855 F.2d at 174 (“[T]he mere fact that

the choice is between comparably unpleasant alternatives . . .

does not of itself establish that a resignation was induced by

duress or coercion . . . . This is so even where the only

alternative to resignation is facing possible termination for

cause, unless the employer actually lacked good cause to believe

that grounds for termination existed.” (emphasis added)).

Plaintiff alleges that on May 12, 2017, Principal Gould

called her into his office for a meeting with him and “HR.”

(Compl. (Doc. 5) ¶ 23.) Plaintiff alleges that waiting for her

was a pre-drafted resignation letter for her to sign. (Id.) She

was told that if she did not sign the letter, she would be “put

on a list she did not want to be on.” (Id.) This list was

“presumably” a list of teachers who were terminated or of

teachers who are not eligible for rehiring. (Id.) Defendant

argues that there is no constructive discharge, because

Plaintiff could refuse to sign the resignation letter and fight

her termination. (Def.’s Br. (Doc. 9) at 13.) Analyzing the

facts, using the Stone factors, suggests that Plaintiff has

alleged enough facts to plausibly claim that the incident with

Principal Gould and HR amounts to a coercive constructive

discharge.6

Beginning with the first factor, Plaintiff fails to

plausibly allege that she was not presented with an alternative

to resignation, but she also alleges facts from which it can be

reasonably inferred that Defendant lacked a good faith reason

for the termination. For that reason, the first factor supports

a conclusion that the resignation was “purely coercive.”

Defendant threatened to put Plaintiff “on a list she did not

want to be on” if she did not resign, but Plaintiff does not

specifically allege what list that was. (Compl. (Doc. 5) ¶ 23.)

Instead, Plaintiff “presumes” that it was a list of “terminated

employees or employees who were not eligible for hire within the

State’s public school systems . . . .” (Id. ¶ 23 (emphasis

added).) The imprecision of Plaintiff’s allegation is notable

when compared, for example, to another case involving a

terminated teacher in the Western District of North Carolina, in

which the district court found there was a constructive

discharge. See Dubois v. Henderson Cty. Bd. of Educ., Civil No.

6 It is true, as Plaintiff argues, that she is not required

to plead facts supporting all the factors. (See Pl.’s Am. Resp.

(Doc. 14) at 14 n.2.) Still, Plaintiff is required to plausibly

allege a constructive discharge and the factors are helpful in

determining whether she has done so.

1:13-cv-00131-MR-DLH, 2014 WL 340475, at *3 (W.D.N.C. Jan. 30,

2014) (“Defendant . . . informed Plaintiff that if he did not

resign, Defendant . . . would . . . ask the State of North

Carolina to revoke Plaintiff’s teaching license.”). Regardless

of what list Plaintiff was actually threatened with, she has not

provided facts supporting the conclusion that it was the

“Hobson’s choice” she alleges it was, even if the list was the

worse of the two options. (Pl.’s Am. Resp. (Doc. 14) at 1.)7

Indeed, constructive discharge claims have faltered when

plaintiffs were faced with more difficult options than Plaintiff

faced here; courts have found that even when the alternative to

resignation includes disciplinary or criminal charges, there is

still a choice. See Stone, 855 F.2d at 174 (collecting cases).

7 Plaintiff cites to two Fourth Circuit district court cases

that she claims support her position that a “resign or be

terminated” situation presents no choice at all. (Pl.’s Am.

Resp. (Doc. 14) at 11–12.) The court finds these authorities

distinguishable from Plaintiff’s case. First, in Bauer v.

Holder, the plaintiff had been terminated from the FBI’s New

Agent Training Program for failure to meet physical standards.

25 F. Supp. 3d 842, 846 (E.D. Va. 2014), vacated sub nom. on

other grounds, Bauer v. Lynch, 812 F.3d 340 (4th Cir. 2016).

That trainee was only given the choice between immediate

resignation or immediate termination. Id. at 852. In either

case, the effect was immediate. The other case, Hudock v. Kent

Cty. Bd. of Educ., dealt with “immediate” termination or

resignation. Civil No. CCB-14-2258, 2015 WL 1198712, at *16

(D. Md. Mar. 16, 2015). Here, by contrast, Plaintiff’s

termination and resignation were apparently not to take effect

until the end of the school year. (Compl. (Doc. 5) ¶ 23.)

Even under those circumstances, plaintiffs can still “stand pat

and fight” by choosing to pursue administrative and legal

remedies rather than resignation. Id. (quoting Christie v.

United States, 518 F.2d 584, 587–88 (Ct. Cl. 1975)). Plaintiff

here does not allege any facts indicating she could not fight

her placement on either list.

Still, despite Plaintiff’s failure to plausibly allege that

she did not have an option other than resignation, she has

alleged facts that allow this court to reasonably infer that

Defendant lacked a good faith basis for threatening her with

termination in the first place, as stated in Stone. See 855 F.2d

at 174. As noted above, if an employer does not have “good

cause” to threaten termination, then a choice between

resignation and termination is one made under duress. See id. at

174–75 (citing Schultz, 810 F.2d at 1136). In that situation,

the “threatened action by the [employer] is purely coercive.”

Schultz, 810 F.2d at 1136.

Plaintiff alleges that she successfully completed her PIP.

(Compl. (Doc. 5) ¶ 21.) She also alleges that Principal Gould

had recently informed her, in the form of a positive performance

review, that she had been performing satisfactorily; in support

of that allegation, Plaintiff cites from that performance review

written by Principal Gould at some point during April 2017. (Id.

¶ 22.) That report contained the following remarks: “Ms. Schmitz

is to be commended for her professionalism, concern for her

students, and quality of instruction. . . . Student respect is

obvious in her classroom,” as well as other commendations. (Id.)

These facts support an inference that Principal Gould did not

have “good cause to believe that grounds for termination

existed.” Stone, 855 F.2d at 174–75. That inference may be

rebutted at later stages, but at this point in the proceedings,

it must be drawn in Plaintiff’s favor.

The second Stone factor is whether the employee understood

her options. Based on Plaintiff’s factual allegations, this

factor does not support a finding either for or against

voluntariness. Plaintiff’s own pleadings expose her confusion

about the choice she was being offered. Plaintiff alleges that

Principal Gould or HR told her “she would be put on a list she

did not want to be on.” (Compl. (Doc. 5) ¶ 23.) Plaintiff

alleges that list was “presumably” one of two lists: one for

terminated employees, or one of teachers who were not eligible

for rehire within the state. (Id.) It is not clear from her

allegations if Plaintiff’s ignorance was a product of Principal

Gould’s opacity or her own lack of experience with such matters.

In the absence of additional facts describing the basis of

Plaintiff’s presumption or to provide additional context, it is

not clear whether the threat meant what Plaintiff presumed.

Nevertheless, Plaintiff’s pleading permits a reasonable

inference that the suggestion of a “list” was a threat of some

undesirable consequences if she refused to resign. Although it

is a close issue, this court finds the inference sufficient.

Whether the threat occurred or was a threat at all will be

better addressed at a later stage.

The third Stone factor, whether the employee had a

reasonable amount of time to consider her options, does not

support an inference that Plaintiff’s resignation was voluntary.

If a plaintiff has little or no time to consider her choices,

then the choice she makes is more likely one made under duress.

Stone, 855 F.2d at 174. A demand for an immediate decision from

an employee points to coercion, because it deprives the employee

of the chance to consult a handbook, co-workers, or perhaps even

legal counsel. See, e.g., Bauer, 25 F. Supp. 3d at 853

(“[P]laintiff was required to make his decision right then and

there, and after he opted to resign, effective immediately,

plaintiff was required, on-the-spot, to handwrite his

resignation letter using an FBI-provided template.”); Hargray v.

City of Hallandale, 57 F.3d 1560, 1570 (11th Cir. 1995)

(discussing cases where coercion was found in instances where

employees were not allowed to leave the room before making a

decision). As the cases relied on by Plaintiff show, the third

factor usually only points to coercion if a decision must be

made before the employee leaves the meeting. See Hudock, 2015 WL

1198712, at *16; Bauer, 25 F. Supp. 3d at 853; cf. Keyes v.

District of Columbia, 372 F.3d 434, 436, 439–40 (D.C. Cir. 2004)

(finding that fifteen days to consider options points to

voluntariness). This conclusion is buttressed by Dubois, a case

also involving a North Carolina teacher alleging constructive

discharge. In Dubois, it was the plaintiff’s factual allegations

about his lack of time to consider the choice that allowed his

case to survive a motion to dismiss. Dubois, 2014 WL 340475, at

*7. The plaintiff-teacher in that case asked for permission to

reach out to his attorney, a representative in the teacher’s

organization of which he was a member, or even his wife, but was

denied permission to speak to any of them. Id. Further, the

Eleventh Circuit has noted that it is not enough to be forced to

sign before leaving the meeting, but there must be other

“coercive” factors in play before the amount of time to consider

options is unreasonable. See Hargray, 57 F.3d at 1570.

In contrast to Dubois, Bauer, Hudock, and other cases,

Plaintiff here does not allege that she was required to make a

decision before leaving the meeting with Principal Gould and HR.

(Compl. (Doc. 5) ¶ 23.) Instead, Plaintiff alleges she was

handed the letter of resignation and told she had to “sign and

turn [it] in.” (Id.) Furthermore, Plaintiff’s resignation was

not effective “until the end of the school year,” a date that

was apparently beyond the meeting on May 12. (Id.) These are the

only facts Plaintiff alleges about the May 12 meeting. They

suggest that Plaintiff had time to consider her choices. “Turn

in” implies that she would be returning the letter at another

time, not that moment. The fact that her resignation would not

be effective until later in the school year is significant,

because it offers further support that the requested resignation

was not effective immediately. Without any allegations she was

required to sign the letter before she left the meeting, this

court will not assume Plaintiff was forced to sign the letter

before leaving the meeting. The third factor, the amount of time

Plaintiff had to consider her options, points to the

voluntariness of Plaintiff’s decision to resign.

Finally, under the fourth Stone factor, if an employee is

permitted to choose her resignation date, then that shows a

degree of voluntariness. Stone, 855 F.2d at 174. Plaintiff

alleges that the effective date of her resignation was included

in the pre-drafted letter, (Compl. (Doc. 5) ¶ 23), a fact that

indicates a lack of voluntariness.

Plaintiff has plausibly alleged that she was constructively

discharged under at least two of the Stone factors. Notably, and

ultimately persuasive to this court with respect to these

pleadings, is the stark contrast between Plaintiff’s allegations

about her successful performance at the end of the school year

and the allegedly abrupt way in which she was forced to resign.

An involuntary resignation analysis is ultimately an objective

one that looks to the totality of the circumstances. Stone, 855

F.2d at 174. Although this is a close call because the third

factor weighs against a finding that Plaintiff has plausibly

alleged a constructive discharge, this court finds Plaintiff has

alleged circumstances that plausibly support a constructive

discharge claim for purposes of this stage of the proceedings.

The alleged absence of any good cause for a compelled

resignation and the vague, but arguably coercive, circumstances

of the demand for resignation are sufficient to plausibly state

a claim.8

8 These facts present a close call. As described herein,

establishing a coercive discharge is demanding, and the analysis

is heavily dependent upon the facts and circumstances of the

resignation. Later stages of this proceeding, during which

Defendant will have an opportunity to present facts, could

readily undermine a claim of coercive discharge.

2. Third Element: Meeting Employer’s Legitimate

Expectations

In its motion to dismiss, Defendant does not appear to

seriously challenge the third prong, but the court will

nevertheless briefly address it.

A plaintiff must be qualified to do her job before her

termination can be unlawful under the ADA. See, e.g.,

Stansberry, 651 F.3d at 487. Under Section 12112(b)(4), “[t]he

term ‘qualified individual’ . . . must simply mean qualified to

do one’s job.” Larimer, 370 F.3d at 700. Qualified means one has

both the skills to do the job and the ability to show up when

needed. See Tyndall, 31 F.3d at 213 (“In addition to possessing

the skills necessary to perform the job in question, an employee

must be willing and able to demonstrate these skills by coming

to work on a regular basis.”); Ennis, 53 F.3d at 61 (noting an

employee’s tardiness as a negative factor justifying corrective

action and termination).

Plaintiff has plausibly alleged that she was meeting

Defendant’s expectations. First, though Plaintiff was a teacher

and did miss class time to care for her son, those instances

allegedly ceased in December 2016, (Compl. (Doc. 5) ¶ 16), and

it appears that those absences were approved leave. Between the

time her absenteeism ceased and when she was shown her

pre-drafted resignation, Plaintiff alleges she was “performing

satisfactorily.” (Id. ¶ 22.) This conclusion is supported by a

lengthy quote from a performance report written by Principal

Gould at some point during April 2017. (Id.) The quoted material

does not indicate any deficiencies in Plaintiff’s performance or

that she was not qualified to do the job. Plaintiff has

plausibly alleged that she was meeting Defendant’s expectations

at the time she was constructively discharged.

3. Fourth Element: Reasonable Inference of Unlawful

Discrimination

The final element of the prima facie case is showing that

the adverse action “occurred under circumstances that raise a

reasonable inference of unlawful discrimination.” Ennis, 53 F.3d

at 58. Discriminatory motivation need not be conclusively proved

at the motion to dismiss stage, but a plaintiff must allege

enough facts to draw the reasonable inference that she was

terminated “because of” her association with a disabled person.

See Erdman, 582 F.3d at 510; McCleary-Evans, 780 F.3d at 585.

Put another way, “the plaintiff [must] present evidence

indicating it is more likely than not the employer took the

adverse action . . . because of the plaintiff’s association with

a disabled individual.” Magnus v. St. Mark United Methodist

Church, 688 F.3d 331, 337 (7th Cir. 2012) (quoting Timmons v.

Gen. Motors Corp., 469 F.3d 1122, 1127 (7th Cir. 2006)); see

also Hilburn, 181 F.3d at 1230–31 (“[T]he adverse employment

action occurred under circumstances which raised a reasonable

inference that the disability of the relative was a determining

factor in [the defendant’s] decision.” (quoting, Hartog, 129

F.3d at 1085)). Following the Supreme Court’s decision in Gross

v. FBL Financial Services, Inc., 557 U.S. 167 (2009), the Fourth

Circuit has interpreted the ADA’s “because of” language to

require “but for” causation: but for the disability (or

association with a disabled person), the employer would not have

taken the adverse action. Gentry v. E. W. Partners Club Mgmt.

Co., 816 F.3d 228, 234 (4th Cir. 2016); see also Lewis v.

Humboldt Acquisition Corp., 681 F.3d 312 (6th Cir. 2012) (en

banc); Serwatka v. Rockwell Automation, Inc., 591 F.3d 957 (7th

Cir. 2010).

At the motion to dismiss stage, courts “examine the

complaint to determine whether it contains ‘at least minimal

support for the proposition that the employer was motivated by

discriminatory intent.’” Kelleher v. Fred A. Cook, Inc., 939

F.3d 465, 470 (2d Cir. 2019) (quoting Littlejohn v. City of New

York, 795 F.3d 297, 311 (2d Cir. 2015)). If a plaintiff is

performing her job satisfactorily and her only issues with her

employer revolve around her association with a disabled person,

then that can raise an inference of discriminatory motivation.

See Dewitt v. Proctor Hosp., 517 F.3d 944, 948 (7th Cir. 2008)

(noting that evidence of discriminatory motivation existed when

employee was performing job well and only issue with employer

revolved around healthcare costs for disabled dependent); Strate

v. Midwest Bankcentre, Inc., 398 F.3d 1011, 1020 (8th Cir. 2005)

(noting, in the summary judgment context, that a plaintiff’s

“apparently unblemished employment history with the Bank,

spanning more than a decade of work, casts genuine doubt upon

the Bank’s stated reason for terminating her”); see also

Trujillo v. PacifiCorp, 524 F.3d 1149, 1156 (10th Cir. 2008)

(utilizing a totality of the circumstances approach in analyzing

an ADA associational discrimination claim).

For evidence of discrimination, Plaintiff primarily cites

(1) her disparate treatment in the way she was allowed to take

leave and (2) her forced resignation because of allegedly

improper assumptions about her need for future absences. The

court finds Plaintiff has plausibly alleged discriminatory

intent, but for a broader reason than those argued by Plaintiff.9

Plaintiff has alleged the following facts. First, Plaintiff

was performing her job well in October and November of 2016.

(Compl. (Doc. 5) ¶ 7.) Second, Defendant’s only alleged

displeasure with Plaintiff involved her time off to care for her

disabled son in late 2016/early 2017. (See id. ¶¶ 13–15, 30.)

After December 2016, Defendant allegedly began to treat

Plaintiff differently. (See id.) Third, after those incidents

involving her disabled son, Plaintiff was again performing her

9 Plaintiff alleges that she was “treated differently than

similarly situated employees in that other employees not

associated with a disabled family member were regularly

permitted to take sick leave in less-than-half-day increments on

temporary bases.” (Compl. (Doc. 5) ¶ 30.) There are two problems

with this allegation. First, as Plaintiff herself alleges,

Principal Gould did in fact allow her to take time off in less

than half-day increments from November 29 to December 5, 2016.

(Id. ¶ 11.) Counting weekdays on the calendar, that means

Plaintiff was allowed to take leave in less than half-day

increments five times. Though Plaintiff alleges she was not

allowed to continue leaving work at 2:30 p.m. after December 5,

2016, (id. ¶ 13), she was permitted to do so five times. Second,

Plaintiff’s only allegation about disparate impact is that

“other employees” were “regularly” allowed to take leave in less

than half-day-increments. (Id. ¶ 30.) So was Plaintiff, from

November 29 until December 5, 2016. (Id. ¶ 11.) Plaintiff does

not allege that these other employees were allowed to do so more

“regularly” than she was, nor does she allege that these other

employees had to take leave in week-long stretches, as she

requested. In short, Plaintiff has not plausibly alleged that

she actually suffered any disparate treatment at all beyond the

conclusory assertion that she was treated differently, a

conclusion that is not supported by the facts alleged.

job commendably. (Id. ¶¶ 21–22 (noting, among other laudatory

remarks, that Plaintiff had “very capably taught . . . .”).

Fourth, Plaintiff was compelled to resign at the end of the

school year in May 2017. (Id. ¶ 23.) When combined, they give

rise to a reasonable inference of discriminatory intent, that

is, that Plaintiff was terminated “because of the known

disability of an individual with whom the qualified individual

is known to have a relationship or association.” 42 U.S.C.

§ 12112(b)(4). Plaintiff’s facts plausibly support the inference

that her association with her son was “more likely than not,”

Ennis, 53 F.3d at 58, the motivating factor for Defendant’s

actions. At a later stage, this inference may be rebutted by

additional facts, but at this point, the inference must be drawn

in Plaintiff’s favor.

The inference stands despite the fact that there was a six-

month gap between December 2016, when Defendant first had notice

of Plaintiff’s association with her disabled son and she took

her last absence, and her alleged termination in May 2017.10

Proving causation by temporal proximity alone generally arises

only when the time period must be relatively short. See Strate,

398 F.3d at 1019–20; see also Clark Cty. Sch. Dist. v. Breeden,

532 U.S. 268, 273–74 (2001) (per curiam); King v. Rumsfeld, 328

F.3d 145, 151 n.5 (4th Cir. 2003) (finding that two-and-a-half

months too long a lapse in time, barring other circumstances

that explain the gap); Williams v. Cerberonics, Inc., 871 F.2d

10 This period of time also makes it more difficult to infer

that Defendant was worried about Plaintiff missing more work to

care for her son. Plaintiff relies on a case that illustrates

this point, one in which an employee had to care for his

disabled father. See Kouromihelakis v. Hartford Fire Ins. Co.,

48 F. Supp. 3d 175, 180–81 (D. Conn. 2014). In Kouromihelakis,

the employee was terminated following absences and tardiness

that occurred up to the moment of termination. Id.; see also

Kelleher, 939 F.3d at 468, 470 (reversing district court’s

decision to dismiss associational claim when employee terminated

immediately after he was tardy due to the care requirements of

his disabled daughter).

Here, other than the December 6, 2016 incident, all of

Plaintiff’s time off was approved. (Compl. (Doc. 5) ¶¶ 14–16.)

Further, Plaintiff did not request any more time off after

December 2016. (Id. ¶ 16.) The roughly six-month gap between her

last requested absence to care for her son and her termination

makes it more difficult to infer that, in May 2017, Defendant

had any concern about her future availability for work.

Still, when viewing the totality of the complaint,

including the ongoing nature of the illness of Plaintiff’s son,

the court finds there is a minimal inference of discriminatory

intent.

452, 454, 457 (4th Cir. 1989) (finding three-and-a-half months

too long a period).11

In the ADA associational discrimination context, the

Seventh Circuit found, when reviewing a summary judgment

decision, that a period of five months between an employee’s

last interaction with his employer regarding a disabled

dependent and that employee’s termination did not refute

causation. Dewitt, 517 F.3d at 948. Another court allowed a

claim to survive a motion to dismiss when a period of roughly

eight months passed between the beginning of an employee’s

association with a disabled person and his termination. Murray

v. Neff Rental, Inc., Civil Action No. 08-0471, 2009 WL 3172831,

at *6 (W.D. La. Sept. 29, 2009). In Murray, one of the disabled

persons with whom the employee associated suffered from an

illness that was incurable and would continue to require

attention. Id. at *1.

Also, as has been frequently noted in the Title VII

retaliation context, a period of time that is otherwise long may

11 As noted throughout this opinion, Title VII and the ADA

are sufficiently analogous that courts regularly utilize the

reasoning from both bodies of case law interchangeably. See,

e.g., Fox v. Gen. Motors Corp., 247 F.3d 169, 176 (4th Cir.

2001) (“Because the ADA echoes and expressly refers to Title

VII, and because the two statutes have the same purpose — the

prohibition of illegal discrimination in employment — courts

have routinely used Title VII precedent in ADA cases.”).

not negate causation if the adverse action came at the first

opportunity to retaliate. See Martin v. Mecklenburg Cty., 151 F.

App’x 275, 280 (4th Cir. 2005) (noting that, in the retaliation

context, an eleven-month period was explained by employer acting

at first chance to retaliate); Hinton v. Virginia Union Univ.,

185 F. Supp. 3d 807, 839 (E.D. Va. 2016); see also Summa v.

Hofstra Univ., 708 F.3d 115, 128 (2d Cir. 2013) (finding that

four-month gap was explained by first opportunity to retaliate).

Furthermore, if a period of time between notice about an

association with a disabled person and a discriminatory act is

filled with other acts evincing discriminatory animus, then

causation can still be established. See Lettieri v. Equant Inc.,

478 F.3d 640, 650 (4th Cir. 2007) (noting that “courts may look

to the intervening period for other evidence of retaliatory

animus” when there is an otherwise lengthy interval of time). In

one associational discrimination case, the complaint alleged an

employer continued to harass an employee about his supposed

absences and tardiness to care for both himself and a disabled

wife, a fact that bridged several months between the employee’s

last absence and his termination. Pollere v. USIG Pa., Inc., 136

F. Supp. 3d 680, 686 (E.D. Pa. 2015). Another plaintiff alleged

his employer made explicit statements about how his disabled

daughter was driving up healthcare costs for the whole company,

facts that bridged a temporal gap of almost eleven months. Adams

v. Persona, Inc., 124 F. Supp. 3d 973, 985 n.4 (D.S.D. 2015).

Here, the gap between when Plaintiff stopped taking leave

to care for her son and when she was constructively discharged

is not fatal at this stage. First, Plaintiff, as in Murray, was

associated with a family member who had a persistent condition

that would require more care, and Defendant was aware of the

chronic nature of Plaintiff’s son’s disease. (Compl. (Doc. 5)

¶¶ 9, 15.) These facts support an inference that Defendant knew

Plaintiff’s association was ongoing. Second, Plaintiff was a

teacher who was forced to resign at the end of the school year.

(Id. ¶ 23.) Drawing all inferences in favor of Plaintiff, the

review and timing are sufficient to establish a causal

connection between association and termination at this stage of

the proceedings.

Third, and most importantly, Plaintiff has also alleged

intervening conduct that, when taken as true, provides evidence

of discriminatory intent in the intervening period. See

Lettieri, 478 F.3d at 650. “Throughout January and February

2017, Principal Gould began a course of retaliation against

Plaintiff.” (Compl. (Doc. 5) ¶ 17.) Those actions included

holding Plaintiff to a higher standard than other teachers,

reprimanding her for allegedly routine matters, and placing her

on a PIP that started in mid-March. (Id. ¶¶ 18, 20.) These facts

provide sufficient evidence of discriminatory intent during the

intervening period between the time Defendant became aware of

Plaintiff’s association and her forced resignation to support an

inference of causation at this stage.

Finally, Defendant argues that Plaintiff’s discrimination

claim is based on her request for an accommodation, an

accommodation she was not entitled to receive. (Def.’s Br. (Doc.

9) at 21.) Though Defendant is correct in that no accommodation

need be given to the associate of a disabled person, Defendant

is not correct insofar as the denial of such a request cannot

serve as evidence of an impermissible motive. As stated by the

Second Circuit in Kelleher, “[t]hough the ADA does not require

an employer to provide a reasonable accommodation to the

nondisabled associate of a disabled person, an employer’s

reaction to such a request for accommodation can support an

inference that a subsequent adverse employment action was

motivated by associational discrimination.” Kelleher, 939 F.3d

at 469. Plaintiff’s allegations regarding Defendant’s behavior

in January through February of 2017, contribute to the facts

that support the minimal inference needed at this stage.

4. Plaintiff has Plausibly Alleged Her Claim of

Associational Discrimination

Plaintiff has alleged facts that plausibly suggest she was

a teacher whose only issue with Defendant involved her efforts

to care for her disabled son, issues that allegedly led to

sudden negative attention and employment action from Defendant.

She has plausibly alleged that she corrected those alleged

deficiencies and was recognized as a commendable teacher who was

terminated under coercive conditions. For those reasons,

Plaintiff has plausibly alleged her associational discrimination

claim. Defendant’s motion to dismiss will be denied as to Count

One.

B. Count Two: ADA Retaliation

Plaintiff’s second claim is for retaliation under the ADA.

(Compl. (Doc. 5) ¶¶ 32–37.) Plaintiff alleges she engaged in

protected activity because she “reasonably believed that the ADA

protected her both from (a) requesting reasonable accommodations

to care for her disabled son [and] (b) complaining that her

supervisor was retaliating against her for making requests for

accommodations to care for her disabled son.” (Id. ¶¶ 33–34.)

Defendant raises several arguments against Plaintiff’s

retaliation claim, one of which is that it was in fact not

reasonable for Plaintiff to think she was engaged in protected

activity. (Def.’s Br. (Doc. 9) at 26–27.) The court agrees with

Defendant and will only address the reasonableness of

Plaintiff’s belief about her activity.

“No person shall discriminate against any individual

because such individual has opposed any act or practice made

unlawful by [the ADA] or because such individual made a charge,

testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing under this chapter.” 42

U.S.C. § 12203(a). Plaintiffs claiming retaliation under the ADA

must make out a prima facie case that includes the following

elements: “(1) he engaged in protected conduct, (2) he suffered

an adverse action, and (3) a causal link exists between the

protected conduct and the adverse action.” Reynolds, 701 F.3d at

154.

As to the first element, a plaintiff need not prove that

“the conduct he opposed was actually an ADA violation. Rather,

[s]he must show [s]he had a ‘good faith belief’ the conduct

violated the ADA.” Id.12 This good faith belief must be

objectively reasonable, that is, a plaintiff “must allege the

predicate for a reasonable, good faith belief that the behavior

she is opposing violates the ADA.” Freilich, 313 F.3d at 216.

If it has been widely declared that the ADA does not

prohibit the behavior a plaintiff is opposing, then that fact

significantly undermines a plaintiff’s assertion that they were

acting on a reasonable belief. See Tyson v. Access Servs., 158

F. Supp. 3d 309, 316 (E.D. Pa. 2016) (citing Freilich, 313 F.3d

at 216–17); see also Harper v. Blockbuster Entm’t Corp., 139

F.3d 1385, 1388 n.2 (11th Cir. 1998) (noting, in the Title VII

retaliation context, that “[i]f the plaintiffs are free to

disclaim knowledge of the substantive law, the reasonableness

12 A reasonable and good faith belief is only required for

“opposition activity.” See Felix v. Sun Microsystems, Inc., No.

Civ. JFM-03-1304, 2004 WL 911303, at *18 (D. Md. Apr. 12, 2004)

(citing Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253,

259 (4th Cir. 1998)). “Participation” activity, on the other

hand, requires no such showing. Id. Participation activity

includes only those actions taken within statutorily established

systems, such as filing an EEOC charge. See id. Since

Plaintiff’s EEOC charge came well after her termination, her

activities are properly analyzed as “oppositional.” “Opposition

activity encompasses the use of informal grievance procedures as

well as the staging of informal protests and voicing of one’s

opinions in order to bring attention to an employer’s

discriminatory behavior.” Id. (citing Laughlin, 149 F.3d at

259.) In the absence of any allegation of participation

activity, this court construes Plaintiff’s allegations pursuant

to an oppositional activity theory.

inquiry becomes no more than speculation regarding their

subjective knowledge”). Also, if a plaintiff’s alleged basis for

invoking the ADA is intrinsically unreasonable, then that fact

also undermines a claim that they were opposing behavior they

reasonably believed violated the ADA. See Talanda v. KFC Nat’l

Mgmt. Co., 140 F.3d 1090, 1097 (7th Cir. 1998) (discussing case

where it was not reasonable for a manager to believe he was

protecting another employee he believed to be disabled when

objective facts showed employee was not, in fact, disabled

within the meaning of the ADA); Heyne v. HGI-Lakeside, Inc., 589

F. Supp. 2d 1119, 1127 (S.D. Iowa 2008) (finding that a

plaintiff’s belief he was disabled, and thus entitled to an

accommodation, was not reasonable as a matter of law since

plaintiff performed strenuous physical tasks despite his claimed

disability).

In the present case, Plaintiff alleges it was reasonable

for her to think the ADA (1) allowed her to request

accommodations to care for her son and (2) to report any

retaliation based on those requests. (Compl. (Doc. 5) ¶ 33.)

Only the second allegation can qualify under Section 12203(a) as

“oppos[ing] any act or practice made unlawful by [the ADA].” The

court construes the two allegations together as a claim that it

was reasonable for Plaintiff to oppose retaliation for

requesting an accommodation, because it was reasonable to

believe her requested accommodations were permitted by the ADA.

Plaintiff, however, is mistaken about the reasonableness of her

beliefs regarding requests for accommodations and does not

allege a reasonable predicate for her beliefs.

The statute, administrative guidance, case law, and even

the EEOC’s own website all declare that the ADA does not require

an employer to make any accommodations to those associated with

disabled persons. 42 U.S.C. § 12112(b)(5); 29 C.F.R. § 1630.8,

App. (“It should be noted, however, that an employer need not

provide the applicant or employee without a disability with a

reasonable accommodation because that duty only applies to

qualified applicants or employees with disabilities.”); Tyndall,

31 F.3d at 214 (“The ADA does not require an employer to

restructure an employee’s work schedule to enable the employee

to care for a relative with a disability.”); Questions and

Answers About the Association Provision of the Americans with

Disabilities Act, U.S. E.E.O.C.,

https://www.eeoc.gov/facts/association_ada.html (last visited

Oct. 4, 2019) (“Does the ADA require an employer to provide a

reasonable accommodation to a person without a disability due to

that person’s association with someone with a disability? No.”).

Plaintiff’s beliefs about her right to an accommodation in the

first place are contrary to clearly established law and policy.13

Further, Plaintiff’s basis for her first complaint to HR,

her communications with Principal Gould about her need to leave

school early, could not have led to a reasonable belief that she

was opposing conduct prohibited by the ADA. Plaintiff never

complained about discrimination based on her association with

her son, only about Principal Gould’s reluctance or refusal to

13 It is true that retaliation victims should not be forced

to view the law with the “trained analytical eyes of lawyers.”

Ferrell v. Harris Ventures, Inc., 812 F. Supp. 2d 741, 746 (E.D.

Va. 2011) (addressing a Title VII retaliation claim). However,

the regulations, cases, and the plain language of the EEOC

publications, clearly state the rule here that employers need

not provide accommodations to associates of disabled persons.

See, e.g., U.S. E.E.O.C., supra, at 40.

grant her an accommodation.14 After Principal Gould did not

respond to Plaintiff’s request to leave work early on December

6, (Compl. (Doc. 5) ¶ 14), Plaintiff assumed it was fine for her

to leave before the school day was over, as she had done the

previous week, (id. ¶¶ 11, 14). After Plaintiff left on

December 6, however, Principal Gould emailed her later that

night “inquiring where she had been, and stating that he had not

seen her at bus duty at 2:30 pm that afternoon.” (Id. ¶ 14.)

“Plaintiff replied that she had explained her situation with her

son and thought it was okay to leave at 2:30 pm. When she

received no response back, she became very concerned.” (Id.)

14 To the extent that Plaintiff complained to HR that she

was “bullied,” (Compl. (Doc. 5) ¶¶ 15, 19), that bullying was

apparently the retaliation for requesting an accommodation.

Plaintiff’s allegations in paragraphs 15 and 19 could be

interpreted as complaining not about retaliation, but

discrimination (bullying), something that is prohibited under

the ADA and could serve as protected activity.

That interpretation of those paragraphs, however, is not

plausible in light of Plaintiff’s own assertions. As noted

above, Plaintiff alleges her retaliation claim is proper because

she believed the ADA protected her from “complaining that her

supervisor was retaliating against her for making requests for

accommodations to care for her disabled son.” (Compl. (Doc. 5)

¶ 33.) Plaintiff also alleges that the retaliatory animus behind

the adverse employment actions was evidenced by the denial of

her request for an exception to the leave policy as well as

negative animus shown to “her disability-related requests.” (Id.

¶ 36.) This allegation further links her alleged protected

activities to requests for accommodations to care for her son.

Since Plaintiff herself limits her claim to retaliation for

requesting accommodations, this court construes the complaint in

that fashion.

Plaintiff also informed Principal Gould she would not be at work

the following day, December 7. (Id.) Principal Gould apparently

did not respond again that night. The next day, Plaintiff

complained to HR that Principal Gould was “bullying her and

retaliating against her for caring for her disabled son.” (Id.

¶ 15.)

Based on the facts alleged, Plaintiff could not have

reasonably believed that Principal Gould’s conduct in December

2016 amounted to retaliation under the ADA. In fact, Principal

Gould did not deny her leave request, but expressed confusion

about where Plaintiff had been. Further, Plaintiff informed

Principal Gould that she would not be at work the next day,

December 7; Plaintiff does not allege that Principal Gould

denied that request or immediately responded in a negative

manner, only that he did not respond. As in Talanda and Heyne,

the basis for Plaintiff’s complaint to HR was intrinsically

unreasonable in that Principal Gould did nothing that would lead

to a reasonable belief that he had violated the ADA. Though

Plaintiff’s second complaint to HR allegedly followed a series

of negative actions by Principal Gould that could be seen as

retaliatory, that complaint was still based on an unreasonable

belief about her right to request an accommodation.

Because the law was uniformly opposed to Plaintiff’s

beliefs about her right to seek an accommodation, and her own

allegations do not plausibly support a reasonable belief that

Principal Gould was violating the ADA, the court finds that

Plaintiff has not plausibly alleged or shown a reasonable belief

that the conduct she was opposing violated the ADA. Plaintiff’s

allegations, therefore, do not plausibly support the conclusion

that she engaged in protected conduct. For that reason, her

retaliation claim will be dismissed.

C. Count Three: North Carolina Public Policy

Plaintiff’s final claim is that she was terminated in

violation of North Carolina’s public policy as stated in N.C.

Gen. Stat. § 143-422.2, as well as Sections 95-28.1A, and 115C-

302.1, and 16 N.C. Admin. Code § 6C.0402. Plaintiff argues that

this issue is one of “complex state law” that should not be

determined at this juncture. (Pl.’s Am. Resp. (Doc. 14) at 22.)

Defendant disagrees, arguing that a constructive discharge

cannot serve as the basis for such a claim. (Def.’s Br. (Doc. 9)

at 30.) The court agrees with Defendant.

“It is the public policy of [North Carolina] to protect and

safeguard the right and opportunity of all persons to seek,

obtain and hold employment without discrimination or abridgement

on account of . . . handicap by employers which regularly employ

15 or more employees.” N.C. Gen. Stat. § 143-422.2 (2019).

Notwithstanding that policy statement, North Carolina is an

employment-at-will state, and an employee may be discharged “for

no reason, or for any arbitrary or irrational reason.” Coman v.

Thomas Mfg. Co., 325 N.C. 172, 175, 381 S.E.2d 445, 447 (1989)

(quoting Sides v. Duke Univ., 74 N.C. App. 331, 342, 328 S.E.2d

818, 826 (1985)).

North Carolina does have a narrow exception to the at-will

doctrine that permits a cause of action when an employee is

terminated for an unlawful purpose that “contravenes public

policy.” Id. Despite Plaintiff’s arguments to the contrary,

North Carolina courts and federal courts applying North Carolina

law have repeatedly found that “no private cause of action

exists for retaliation, hostile work environment, disparate

treatment, or constructive discharge in violation of public

policy.” Jones v. Duke Energy Corp., 43 F. App’x 599, 600 (4th

Cir. 2002) (emphasis added). In rebuttal, Plaintiff argues that

the phrase “constructive discharge” can encompass different

scenarios and may not include a scenario resembling her

situation. (Pl.’s Am. Resp. (Doc. 14) at 23.) The North Carolina

Court of Appeals, in a persuasive unpublished opinion, held

contrary to Plaintiff’s position. In Clark v. United Emergency

Services, Inc., the North Carolina Court of Appeals analyzed a

constructive discharge very similar to Plaintiff’s. 189 N.C.

App. 787, 661 S.E.2d 55, 2008 WL 1723229, at *3 (Apr. 15, 2008).

In that case, the plaintiff “met with her supervisor and was

asked to write and execute an official statement of resignation.

She refused to do so and understood she was terminated when she

was told to accept on-call duties or find a new career.” Id.

(internal quotation marks omitted). Because the plaintiff in

that case was not able to work an on-call shift due to a medical

condition, id. at *7, she alleged she was constructively

discharged, a contention with which the court agreed. Id. at *4.

Still, the court observed:

In [cases after Coman15], our appellate courts declined

to recognize a public policy exception to the at-will

employment doctrine for constructive discharges.

Graham v. Hardee’s Food Systems, Inc., 121 N.C. App.

382, 385, 465 S.E.2d 558, 560 (1996) (“North Carolina

courts have yet to adopt the employment tort of

constructive discharge.”); Beck v. City of Durham, 154

N.C. App. 221, 231, 573 S.E.2d 183 (2002) (affirming

dismissal of plaintiff’s claim for constructive

discharge); . . . Whitt v. Harris Teeter, 165 N.C.

App. 32, 598 S.E.2d 151 (2004), rev’d and dissent

adopted by 359 N.C. 625, 614 S.E.2d 531 (2005) (North

Carolina courts have yet to adopt a hostile work

environment constructive discharge claim); see also

15 Coman appears to endorse the possibility that some form

of a constructive discharge could serve as the basis for a

termination in violation of public policy claim. Coman, 325 N.C.

at 173–74, 381 S.E.2d at 446. As ably stated by the Clark court,

however, after Coman, “appellate courts declined to recognize a

public policy exception to the at-will employment doctrine for

constructive discharges.” Clark, 189 N.C. App. 787, 661 S.E.2d

55, 2008 WL 1723229, at *4.

Mosley v. Bojangles’ Restaurants, Inc., No.

1:03CV00050, 2004 WL 727033, at *11 (M.D.N.C. Mar. 30,

2004) (“North Carolina courts have declined to

recognize a public-policy exception to the employment-

at-will doctrine for constructive, as opposed to

actual, discharges.”).

Id. An actual discharge is still a necessary predicate “to state

a claim for relief for wrongful discharge in violation of the

public policy of North Carolina. . . . [U]ntil North Carolina

courts expressly recognize constructive discharges for claims of

wrongful discharge . . . , [U.S. district courts] will also

refuse to do so.” Riepe v. Sarstedt, Inc., Civil No. 5:09-CV-

00104, 2010 WL 3326691, at *5–6 (W.D.N.C. Aug. 23, 2010).

In light of the forgoing analysis, this court declines to

expand North Carolina public policy to allow a constructive

discharge to support a wrongful termination claim. Plaintiff has

provided this court with no North Carolina decision that

contradicts the holding of the Clark court. A federal court

applying state law should not expand state public policy. Time

Warner Entm’t-Advance/Newhouse P’ship v. Carteret-Craven Elec.

Membership Corp., 506 F.3d 304, 314 (4th Cir. 2007).

For these reasons, Plaintiff’s third claim for wrongful

termination in violation of North Carolina public policy will be

dismissed.

Iv. CONCLUSION

For the foregoing reasons, this court finds that

Defendant’s motion to dismiss should be denied in part and

granted in part.

IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss,

(Doc. 8), is DENIED IN PART AND GRANTED IN PART. Defendant’s

Motion to Dismiss is GRANTED as to Counts Two (ADA Retaliation)

and Three (North Carolina Public Policy); the motion is DENIED

as to Count One (ADA Associational Discrimination).

This the 26th day of February, 2020.

Lh) Aim L. aha. □

United States District Jud

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