Petition for Writ of Certiorari — Filoso v. Prince William County School Board

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2005

PHYLLIS A. FILOSO,

Petitioner, Pro Se

PRINCE WILLIAM COUNTY SCHOOL BOARD

Respondent,

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Phyllis Filoso Mary McGowan, Esq

212 Foresail Cove Jennifer Porter, Esq.

Stafford, Virginia Siciliano, Ellis, Dyer,

22554 10521 Judicial Drive

Petitioner Suite 300

Pro Se rairfax, Virginia22030 —

Counsel for Respondent

Questions Presented

American with Disabilities Act (ADA) and 504 Rehabilation

Act.

II. Did the Fourth Circuit Court of Appeals err in it's use of

Matvia v Bald Head Island Management Inc., a case not

sufficiently similar for constructive discharge/retaliation, as it

relates that a regular person would not have felt compelled to

resign,in failing to address these acts in context as they apply

to a persons disability would then allow reckless indifference

by the employer with regard to the particular disability of the

disabled employee.

PARTIES TO THE PROCEEDINGS

The only parties to the proceedings are those listed in the

caption of the case.

see

Statutory Provisions Involved

Baert v Euclid Beverage, Ltd., 149 F.ed 62. 633-34

(7"" Cir. 1998)

Barnett v U.S. Air, Inc., F3d at 1116 (gh Cir. 2000)

Butlemayer v Fort Community School, 100f 3d

1285 (7" Cir. 1996)

Cannice v Norwest Brake, lowa N.Z. 189 f 3d at 727

(8"" Cir. 1999) cert denied

Cravens v Blue Cross& Shield of Kansas City, 214 F.3d

1011,1020(8" Cir.2000)

Despears v Milwaukee Court, 3F.3d 635.

(7" Cir. 1995)

Fjellestad v Pizza Hut of America, Inc., 188F.3d at 953

(8" Cir.)

Hendricks-Robinson v Excel Corp., 154 f.3d 85. 689

(7"" Cir. 1998)

Humphrey v Memorial Hospital No.998-15404

(9"" Cir.2000)

Kimbro v Atlantic Richfield Co, (Third Cir.)

Matvia v Bald Head Island Management, Inc.,

259 F.3d 261,271 (4" Cir. 2001)

13n

12n, 13,23

12n

12n,13n

Reimer v litinois Dept. of Transportation, 148 F.3d 800

(7" Cir. 1998) 17

Skelenke v Medical Imaging of Colorado

(10" Cir.2001) 26

Smith v Midland Brake, Inc., 180 F3d 1173, 18n

(10" Cir. 1999)

Taylor v Principal Fiancial Group Inc., F.3d

155,165 (5" Cir. 1996) | 12n,13n,18n

Taylor v Pheonixville School District 184 F 3d

at 317-18, (3™ Cir. 1999) 12n,13n,19n

Tyndall v National Education Centers of California Inc. 15

31 F/3d 209. 212-216 (4" Cir. 1994).

Willis v Conopo, 108 f.3d 282,285 (11" Cir 1997)

Stacues and Rules

42 U.S.C.612111(a)

42 U.S.C.6 12112(b)(5)(A)

42 U.S.C.612111(8)

42 U.S.C. 612113(a)

29 C.F.R. 61630 (0)(3)

29 C.F.R. 61630.2(0)(3)

29 C.F.R.pt.1630, App. 6 1630.9 at 359

29 C.F.R. Pt. 130, App.6130.9

American with Disabilities Act of 1990, 5101(8), 102(a),

Other Material

Senate Rep.

House of Representative. No. 101-485, pt. 2 at 65 (1990)

EEOC Enforcement Guideline

EEOC Compiaince Manuat (CCH,NO0.915.002 (March 1, 1999)

EEOC Guidance: Reasonable Accommodation and Undue Hardship

under The Americans With Disabilities Act,

EEOC Interpretative Guideline

TABLE OF CONTENTS

QUESTIONS PRESENTED

PARTIES TO THE PROCEEDINGS

TABLE OF AUTHORITIES

JURISDICTION

STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

A. COURSE OF PROCEEDINGS AND

DISPOSITION BELOW

SUMMARY OF ARGUMENT FOR

GRANTING THE PETITION

ARGUMENTS

1. |. The Court erred when it used Tyndal vs.

National Education Association as the case

cited to affirm the District Courts ruling to

state that Mrs. Filoso had not made a prima

facie case of discrimination by PWCS, her

PAGE

employer. The case is not sufficiently similar

to apply the adverse ruling by the Fourth Circuit

2. The Court erred when it didn’t consider that

PWCS did not assign Mrs. Filoso to a vacancy

that she qualified for that would have provided

effective accommodation.

3. PWCS failed to” act in good faith” in the

EW EIA aii

‘nmteractive process to find an effective

iccommodation. and willfully failed to make any

requested accommodation for the 2001-2002

school year and whose failure to do so created

the adverse employment action.

If. The Fourth Circuit using Matvia v Bald Head !sland

Management, Inc., a case that cites a

regular person would not have felt complelled to

resign errs on the issue that consideration must be

given as it relates to a person with a disability whose

disability is affected by the employers actions. The

case is not sufficiently similar to warrant its use

in Mrs. Filoso’s case for retaliation/constructive

discharge on a number of grounds.

Conclusion 30

IN THE

SUPREME COURT OF THE UNITED STATES

PHYLLIS A. FILOSO,

Petitioner, Pro Se

PRINCE WILLIAM COUNTY SCHOOL

BOARD

Respondent,

Petition for a Writ of Certiorari to the

United States Court of Appeals

For the Fourth Circuit

Brief For The Petitioner

OPINIONS BELOW

In the opinion of the District Court of The United States For

The Eastern District of Virginia, Alexandria Division, Judge

Leonia Brinkerma ruled in favor of the defendant on July

3,2003. The Fourth Circuit of Appeals affirmed that

decision on December 3, 2003.

JURISDICTION

The judgment of the United States Court of Appeals for the

Fourth Circuit was entered December 3, 2003. This Court’s

jurisdiction is based on 28 U.S.C. € 1254(1) (1994).

te wrote

Statement Of The Case

A. Course of Proceedings and Disposition

The District Court ruled on the case July 3, 2003. The

Appellate Court ruled on the case December, 3, 2003.

‘B. Statement of Facts

Mrs. Phyllis Filoso represented herself pro se with the

Fourth Circuit Appellate Court. As such, the entire record

was available for review by the court.

Mrs.Filoso was an employee of the Prince William

County School Board (PWCS) for six consecutive years and

also two years prior for a total of eight years. As such she

was a tenured Earth Science teacher with rights of continuing

contract. During the last two years of her employment, Mrs.

Filoso developed a disability which required accommodation

by her employer in order to allow her to do her job. PWCS

was first notified of the need to accommodate Mrs. Filoso

beginning in April 2000. Appendix C page 2 (App.C.2)

In September 2000 Mrs. Filoso asked to be moved to a

room with a window due to breathing difficulties brought on

by her employer’s floor waxing. This request was granted

and she was allowed to move to a room designated as math.

Appellant Br. Page 26. Mrs. Filoso was allowed to teach in

the math room for the entire school year and received the

highest rated evaluation: effective while teaching in the

math room. Mrs. Filoso was never approached by

administration to leave the math room during the 2000-2001

school years. App.C 13-14. -

In late October 2000 Mrs. Filoso reported a gas smell and

asked for immediate corrective action to be taken at that time

as it was triggering illness with her disability. These

continuing exposures exacerbated her disability. This

prompted Mrs. Filoso to send Mr. Gill an e-mail asking that

she be disconnected from the HVAC system. App.C 18.

Unbeknown to Mrs. Filoso upon receipt of the e-mail Mr.

Gill contacted Personnel where upon she became the subject

of discussion There was a statement made that the school

system had already "bent over backwards" accommodating

her. Mrs. Filoso never received any response from the

administration regarding her e-mail. App.C.5

In the January/February timeframe additional requests

were made in connection with bus exhaust entering the

building. School practice at that time was to prop the outside

doors open in the morning and for buses to keep their

engines running while unloading the students. Mrs. Filoso

asked if the doors could be kept closed instead of propped

open, if buses could shut their engines off during the

unloading, and if it were possible to move the buses

loading/unloading area further from the building. Mrs.

Filoso was told no to every single request. App.C 26.

In March 2001 because of continuing breathing difficulties

in the building Mrs. Filoso requested a meeting with

Principal Gill to discuss her room assignment for the

following 2001-2002 school year. Mrs. Filoso stated the

necessity of being allowed to remain in a room with

windows that could open. At that meeting Mrs. Filoso was

given verbal instructions to obtain supporting documentation

from her treating physician for such a request.

Documentation in the form of a letter was given to Principal

Gill as provided by her physician, Dr. Smith that clearly

indicated the need to be assigned a room with a window for

the following year. PWCS did not engage in the interactive

process by either granting or denying this request. Neither

Mrs. Filoso nor Dr. Smith was ever contacted regarding this

request.

An employer has an obligation to look at each request as

a new accommodation request. An employer has a

continuing duty to interact with an employee when a request

is made. App.C.9.

By giving notice in March that Mrs. Filoso's disability

had progressed to the point that a permanent change to a

PRESS yw

room with a window was necessary for the following school

year, she is giving notice of accommodation needed with the

supporting documentation six months before it is required.

Mrs. Filoso provided her employer adequate notice/ time to

engage her in the interactive process, look to alternatives if

accommodation is not possible at Forest Park.

The issue of financial undue hardship for the school to

provide accommodations in that math room or any room at

Forest Park was claimed for the first time post litigation.

App.C.6-7. Principal Gill at Fact Finding Hearing in May

2002 over a year later stated he couldn't give a dollar amount

for any accommodation requested. App.C 4.

During the month of April Mrs. Filoso e-mailed and

reported almost daily illness to the administration due to

sewer gas on the second floor where she is located and for

corrective action taken immediately to correct the problem.

These daily exposures caused several absences and her

having to leave early extremely ill due to sewer gas

exposures in her classroom area during the month of April

2001. There again was no reply by the administration.

As her health continued to declined Mrs. Filoso copied

Principal Gill to insure that he was fully aware of the

situation. Receiving no response to any e-mails Mrs. Filoso

requested a meeting in her room with Mr. Gill, Mrs. Custard,

her iminediate assistant principal and the building engineer.

Mrs. Filoso verbally told them again of her illness and their

need to take corrective action. Mr. Gill's own handwritten

notes indicate that at this meeting administration did not

address the issue of the sewer gas, any corrective action

being taken, or any alternatives for Mrs. Filoso to keep her

from being exposed. She is told no to her request to be

disconnected and she is also discouraged from opening the

window. App.C. 5. Although Principal Gill acknowledges

other teachers have open windows to kind of relief the sewer

gas smell Mrs. Filoso is signaled out and discouraged from

opening hers. App.C.19.

Failure on the part of her employer to file a First Accident

Report caused Mrs. Filoso independently to file one on ‘er

own behalf which cited injury due to sewer gas. Principal

Gill signed off on the accident report. App.C.19.

Failure on the part of PWCS to correct the sewer gas

resulted in Mrs. Filoso filing a confidential complaint with

Virginia Occupational Safety and Health (VOSHA).

App.C.29

Mrs. Filoso had engaged in protected activity of asking

for accommodations, reporting hazardous work conditions,

illness from such work conditions, and seeking help of her

Teacher Association (PWEA) all prior to Mr. Fitzgerald’s

April 26" letter. App.C.16, 29. Not just the formal

notification complaint about a potential ADA violation cited

by Judge Brikerma. District Court Transcript p.23.

(Transcript 23)

Mr. Fitzgerald in a letter dated April 26, 2001 to Mrs.

Filoso state her absences are unreasonable, that her

accommodation request are incredulous, and for her not to

make any further accommodation requests. He gives her a

directive to seek medical attention to correct her illness so

that she can work in a "standard" classroom. He also

references the two letters from Dr. Smith, so Mr. Fitzgerald

as Personnel Director and 504 Compliance Officer is aware

when his letter is written Mrs. Filoso has an illness that

requires accommodation. He also directs Mrs. Filoso to

contact his office to discuss employment options. App.C.27-

28.

A person filing a complaint with VOSHA or reporting

hazardous work conditions to their employer is protected by

law from retaliation by their employer. Upon receiving Mr.

Fitzgerald's letter of reprimand for absences due to sewer gas

Mrs. Filoso wrote a letter to VOSHA voicing her concern

that she was being retaliated for reporting hazardous/toxic

conditions. App. C.29.

In a letter dated May 2, 2001, Dr. Smith stated that sewer

gas was causing such intolerable symptoms in Mrs. Filoso

;

that it was necessary for her to leave the work environment

until the problem could be corrected. App.C. 18.

Judge Brinkerma cited the April 26" letter as "plaintiff

was on notice from April 26, 2001, that her absenteeism was

unacceptable and had to be corrected..." District Court

Transcript 22-23. .

Judge Brinkerma's interpretations of the absences fails to

relate or consider the absences as they related to toxic sewer

gas exposure, Mrs. Filoso's disability or Dr. Smith's April or

May 2, 2001 letter indicating the need for necessary

accommodations. App.C19

Such omission did not account for rights given to Mrs.

Filoso by law for time off from work under Virginia’s

Worker's Compensation, Family Medical Leave Act, and as

a reasonable accommodation for her disability. App.C.19,21

The court did not address any of these entitlements in her

statement.

PWCS did not claim that Mrs. Filoso missed more than

12 weeks of school during this time period.

Following the April 26" letter a meeting was requested by

Mrs.Filoso and Alan Caudill, Prince William County

Education Association (PWEA) as her representative to be

held with Mr. Fitzgerald. Discussed during that meeting

were her absences as they related to sewer gas in her school.

her disability, the need for accommodation to include a

window and her desire to remain an employee. App.C.28.

Mrs. Filoso was verbally told that he would have to do

some checking to see if her illness was a disability and that

he would get back to her. Mr. Fitzgerald then sent Mrs.

Filoso a letter dated June 8, 2001 stating that she needed to

provide a letter from her doctor stating the nature of her

disability and any necessary accommodations in order for

PWCS to consider her having a disability. Mrs. Filoso

complied with their request with another letter from Dr.

Smith dated June 28, 2001 that was in addition to the April

one for the following year. App.C.8.

A vacancy existed that would have fulfilled these

accommodation requests, an Earth Science position at

Brentsville H.S. App.C.3.

Another meeting was requested by Mrs. Filoso in early

July 2001 to discuss Dr. Smith's letter and accommodation

options. Mr. Fitzgerald, Mr. Caudill, Renee Campbell,

and Mrs. Filoso in early July 2001 attended the meeting. At

that meeting Mr. Fitzgerald informed Mrs. Filoso that an air

study had been completed on Forest Park and that he had

been told that it was OK. Mrs. Filoso requested a copy of

that report from Mr. Fitzgerald. PWCS never provided a

copy to Mrs. Filoso. Fitzgerald was also looking at possible

moving Mrs. Filoso, then Mr. Fitzgerald stated nobody had

air testing done like Forest Park and that he'd get back to us.

App.C.3.

Mr. Fitzgerald chose not to have any further

discussion/meetings with Mrs. Filoso and instead exchanged

a couple of letters with her treating physician, Dr. Smith.

After the first letter Mrs. Filoso was never copied or

informed of any additional correspondence regarding her or

asking for any input from Mrs. Filoso. App.C. 12.

Hearing nothing from Mr. Fitzgerald Mrs. Filoso had Mr.

Caudill inquire about her accommodation requests as it

related to what school she'was being assigned to. Mr.

Caudill e-mailed Mr. Fitzgerald and asked if they needed to

meet on this issue. Mr. Fitzgerald declined to meet and told

Mr. Caudill that she would be reassigned back to Forest

Park. App.C. p.3.

Again hearing nothing concerning the accommodation

request about cleaners Mrs. Filoso a Mr. Caudill inquire in

early August on her behalf about the cleaning of the school

for the 2001-2002 school year. Mr. Caudill e-mailed Mr.

Fitzgerald and asked about cleaners. Mr. F itzgerald at that

time asked if there was a list. Mrs. Filoso provided the name

of a company that specialized in cleaners for schools for

people with breathing problems such as Mrs. Filoso's.

Having received no information from Mr. Fitzgerald as to

her room assignment at Forest Park, Mrs. Filoso visited the

school to see her room and begin preparations for returning

to work. While in the building Mrs. Filoso discovered that

the school system was continuing to use the same floor wax

that had made her ill the year prior. She was also verbally

informed by the school secretary that is in charge of room

keys that she was now assigned to and inside classroom that

had no windows. In speaking with the building engineer,

Neil Sherrill she also finds out that PWCS had not provided

her with a separate air system for her new room assignment

-App.C. 4. There is an e-mail from Mr. Gill to Mr.

Fitzgerald stating these facts and that he states, "We didn't

make any such promises." "Let the games begin." App. Br.

This comment is in contradictions to Mr. Fitzgerald e-mail to

Mr. Caudil in which he stated the accommodations will be

made at Forest Park. App. C.15..

Mr. Caudill immediately contacted Mr. Fitzgerald on

Mrs. Filoso's behalf and was assured the school system

would meet the accommodations in her doctor's letter. Mrs.

Filoso made one more trip to the school later that week and

was still told by the secretary in charge of keys that her room

assignment had not changed.

Mrs. Filoso informed Mr. Caudill that she would do the

one teacher workday as required by her contract at home

during the week of Aug. 20" 2001 so that the room

assignment could be worked out with Mr. Fitzgerald prior to

teachers arriving in the building and getting their rooms’ set-

up. Having no separate HVAC system a room with a

window was critical to Mrs. Filoso being able to work at

Forest Park.

Reporting to work on August 27, 2001, Mrs. Filoso was

still assigned to an interior room with no window. The room

now contained two air filters. Unknown to Mrs. Filoso at

the time was the fact that these were not the correct type of

filter to remove the gases that cause Mrs. Filoso to become

ill. Mrs. Filoso attempted to attend a faculty meeting ina

part of the building in which no accommodations for her had

been made. Mrs. Filoso notified Mr. Gill of illness and left

to go to her assigned room as it contained her charcoal air

filters. App. C.15,21.

A meeting was held with Principal Gill later that day in

his office. Mrs. Filoso reiterated the need for a room with a

window. Principal Gill said he had no knowledge of

accommodations since the discussions had been held with

the Personnel Director, Mr. Fitzgerald over the summer. Mr.

Gill e-mails Fitzgerald about the meeting and Mrs. Filoso

getting sick. He states she went to her classroom. “We’ll see

how long that lasts.” App.C.32.

She continued to go to work that week on the in-service

days prior to student arrival. Although Ms. Filoso was ill

each day that week she managed to stay at school during the

entire work day and fulfill her contractual duties the week of

Aug. 27" 2001. However, the following week with the

addition of buses, student personal grooming products etc.

and the schools continued use of floor waxing the week

before, Mrs. Filoso began having such breathing difficulties

that she had to leave school before completing the

workday.App. C.21.

With the exception of 3 days Ms. Filoso continued to

report to work each day expecting that she would be

assigned to a room with a window as Mr. Fitzgerald had

stated her accommodations would be made at Forest Park.

App.C.21.

After several failed attempts to secure accommodations

Mrs. Filoso on Sept. 7. 2001 informed Mr. Gill that she and

PWEA were meeting with an attorney. App.C.32.Following

the meeting with her attorney Mr. Gill was informed on Sept.

10", that Mr. Caudill was making one more attempt with Mr.

Fitzgerald to secure a room with a window for her. Appellant

Br. In an e-mail from Mr. Fitzgerald’s to Mr. Gill he states

that PWEA will be calling him to make a plea for a window

for Mrs. Filoso, that they are ready to pull the plug on her.”

App C.32.

/¢

PWCS answer came six weeks later on Oct.5 , 2001. six

weeks later that he wouldn’t allow a one week trial in a room

with a window. App.C.32.

Mrs. Filoso brought in another etter from Dr. Smith dated

Sept. 13, 2001 that indicated that the information provided

him by Mr. Fitzgerald concerning room assignment, HVAC

and cleaners was lacking, incomplete and ineffective. PWCS

never responded to Dr. Smith's letter. App. C..32.

In order for an accommodation to be an accommodation

it has to be effective.

Aug. 27, 2001 Principal Gill was clearly on notice by Mrs.

Filoso that the room that he had assigned her to was not

effective. App.C.32..

It was also pointed out that no requests were made for Mrs.

Filoso according to Principal Gill for 2001-2002.

employment "App.C.. 32.

Mr. Gill sent Mrs. Filoso concerning her absences on

Sept. 18, 2001 in which he states, "If you have a bona fide

illness requiring you to miss work, you must provide me

with a signed physician's letter indicating the reason within

three workdays of your absences," etc., etc. "If you have any

unexcused absences in the rest of the school year whether

from coming in late, leaving early, or not coming in at all, |

will have no choice but to recommend the termination of

your employment. App.C.11.

Principal Gill in an e-mail acknowledges that he gets the

notes from Dr. Smith's and references one in particular and

States there's a new look, it had ventilated area checked.

App.C.32. Mr. Gill is also on record that he was aware of

Sept. 13" letter when he wrote Sept. 18" letter. App.C.32.

Mrs. Filoso provided a doctor's note for every single time

she had to leave the building early due to breathing

difficulties from non-accommodation which was the only

time she missed after the Sept.18"" letter. Mrs. Filoso had

complied with the instructions in the Sept. 18" letter. PWCS

did not claim that Mrs. Filoso did not provide the return to

work notes as she was told to provide within the 3 days.

App.C.32.

PWCS did not claim that Mrs. Filoso had not complied

with the Sept. 18" letter. Mrs. Filoso is recommended for

termination despite having complied with Principal Gill's

Mrs. Filoso was placed on Administrative Leave with

pay until the Grievance Process was completed. App.C.33.

Mrs. Filoso pointed out to the court that at the time she

was being placed on Administrative Leave there were two

positions available within the school system for which she

was qualified. App.C. 15.

In July 2002 Mrs. Filoso was officially terminated by the

Prince William County School Board.

At the time of the final adverse action, termination Mrs.

Filoso had two doctors, Dr. Smith and Dr. Grace Ziem an

Occupation/Environmental physician both treating

physicians had written letters on Mrs. Filoso's behalf stating

that she had a disability that needed to be accommodated.

The school system did not consult with any other doctor and

instead as Mr. Fitzgerald stated at the Fact Finding Hearing

obtained his information about Mrs. Filoso's illness from

some unknown source off the Internet. App.C.8.

Summary of Argument

Discrimination under the ADA encompasses not only

adverse actions motivated by prejudice and fear of disability

but also includes failing to make reasonable accommodation

of disabilities. The ADA specifies that an employer

discriminates against a qualified individual with a disability

when the employer does "not mak[e] reasonable

accommodations to the known physical or mental limitations

of the individual unless the [employer] can demonstrate that

the accommodation would impose an undue hardship on the

operation of the business of the [employer]" 42 U.S.C.

§12112(b)(5)(A).

This brief is based on three premises.

I. The review is necessary to ensure employees are entitled

to equal protection under the Americans With Disabilities

Act and the 504 Rehabilitation Act regardless of the circuit

in which they reside. Specifically as it applies to the duty by

an employer to engage in the interactive process, act in good

faith and duty to reassign to a vacancy in which they are

qualified for if accommodation is not possible at their current

position is equally applied.

The Fourth Circuit Court of Appeals in affirming the

decision of the District Court disregarded or failed to

consider 29 C.F.R.& 1630 (0)(3) and 42 U.S.C.

&12111(9)(B) as they applied to Mrs. Filoso's case. They

acted in a manner inconsistent with their sister courts and the

U.S. Supreme Court when they granted summary judgement

when there was a genuine dispute of material facts as to

whether or not her employer engaged in "good faith" in the

interactive process to find an effective aceommodation. The

U.S. Supreme Court when it declined to disturb Humphrey v

Memorial Hospital sent a very clear message to the various

circuits as to their duty to engage in the interactive process

and to reassign to a vacancy.

The majority of sister circuits including the third, fifth,

seventh, eighth, ninth, and tenth have ruled on the issue and

have held that an employer will be liable when a reasonable

accommodation otherwise would have been possible had the

employer engaged in the interactive process in goad faith.’

' Barnett v U.S. Air, Inc.,228 F3d at 1116 (9" Circuit 2000):

Smith v Midland Brake,Inc., 180 F3d 1173,(10" Circuit

1999):Cannice v Norwest Bank lowa, N.Z. 189 F.3d at 727.(8

Cir. 1999). cert. Denied, 120 S.Ct. 1421 (2000); Taylor v

Pheonixville School Distrist, 184 F.3d at 317-18: Bultemeyer v

Fort Wayne Community School, 100F.3d at 1285 (7" Cir. 1996)

100f.3d at 1285 (3 Circuit 1999): Taylor v Principal Fin. Group.

Inc., 93 F.3d at 165 (5" Circuit); Fjcllstad v Pizza Hut of America,

Inc., 188 F.3d at 953(8" Circuit).

i 3

The third, fifth, seventh, eighth ninth, and tenth circuits

also have to refused to grant an employer summary judgment

if there is a genuine dispute of material fact as to whether or

not an employer engaged in good faith in the interactive

process.”

Both the Third and the Eighth Circuits, for example have

explicitly established that a plaintiff has the burden of

demonstrating that:

|) The employer knew about the employee's disability:

2) The employee requested accommodation or assistance for

his or her disability;

3) The employer did not make a good faith effort to assist the

employee in seeking accommodation; and

4) The employee could have been reasonably

accommodated but for the employer's lack of good

faith."

2 siniags: 28 F.3d at 1116: Fjcllestad. 188 F.3d at 953: Taylor,

184 F.3d at 318 (although no per se liability under the ADA, if an

cmployer fails to engage in the interactive process at the summary

judgment stage the employer's failure is prima facic evidence of

bad faith and summary judgment will be denied; Taylor, 184 F.cd

at 318 (where there is a genuine dispute about whether an

employer acted in good faith in the interactive process, summary

judgment cont. typically con will be precluded; Smith, 180 F.3d

at 1173 (summary judgment would be premature if there is a

genuine dispute regarding whether [the employer] participated in

good faith in attempting to secure a reassignment position for

[plaintiff]): Baert v Euclid Beverage, Ltd., 149 F.ed 62, 633-34

(7t" Circuit 1998) (summary judgment inappropriate when it was

disputed as to which party had caused breakdown in interactive

process; Bultemeyer, 100 F.3d at 1284-86 (denying summary

judment to employer who refused to engage in interactive process.

on the grounds that had if it done so a reasonable accomodation

may have been found, even if employee did not request specific

accommodation).

cx seltes

FE SAA aN ARENAS Pe SAS al OE gat laity ys SATE AOE a What ee EAL cdi eri ada oh ae ABSA Raid sat lo A

ET Ce a ee re men

i+/

Taylor, 184 F.3d at 319-20 (emphasis added); Cravens v

Blue Cross & Blue Shield of Kansas City, 214 F.3d 1011,

1020 (8"" Circuit 2000).

This burden is also demonstrated in Willis v. Conopco, 108

F.3d 282, 285 (11" Circuit 1997) (per curiam).

Il. The second premise is failure on the part of the Fourth

Circuit to address these issues resulted in the court looking

only at the end result of time missed from work and not the

issues of failure to transfer to a vacancy that would have

been an effective accommodation nor failure of PWCS to

"act in good faith" in the interactive process. Both of these

actions on the part of PWCS caused the result of time missed

from work and termination.

The Fourth Circuit's ruling negates the intention of

Congress when it envisioned that a "problem-solving

approach should be used to identify possible

accommodations...employers first will consult with and

involve the individual with a disability in deciding on the

appropriate accommodation." S.Rep.No.101-116, at 34

(1989);H.R. Rep. No. 101-485, pt. 2, at 65 (1990).

This Fourth Circuit’s ruling also is contrary to applicable

EEOC regulations which provide ‘that in order [to]

determine the appropriate reasonable accommodation it may

be necessary for the [employer] to initiate an informal,

interactive process with the qualified individual with a

disability in need of accommodation. This process should

identify the precise limitations resulting from the disability

and potential reasonable accommodation that could

overcome those limitations." 29 C.F.R. &1630.2(0)(3).

The EEOC's interpretive guidance informs that the

“employer must make a reasonable effort to determine the

appropriate accommodation. The appropriate reasonable

accommodation is best determined through a flexible,

interactive process that involves both the employer and the

[employee] with a disability". 29 C.F.R. Pt. 130, App.

& 130.9.

Finally the EEOC's Enforcement Guidance provides the

"[t}he employer and the individual with a disability should

engage in an informal process clarify what the individual

needs and identify the appropriate reasonable

accommodation." EEOC Enforcement Guidance:

Reasonable Accommodation and Undue Hardship Under the

Americans with Disabilities Act, EEOC Compliance

Manual (CCH, No. 915.002 (March 1, 1999)

I1I. The third premise is when the Fourth Circuit choose

Tyndal v National Education Centers, of California Inc. and

Matvia v Bald Head Island Management, Inc., 259 F3d261,

(Fourth Circuit 2001) No. 00-1650 to cite in Mrs. Filoso's

case as the cases are not sufficiently similar and will have

determinate effects on individuals with disabilities

requesting accommodations and suffering adverse health

effects of their disability when reasonable accommodations

are not made.

Argument

1. The court erred when it used Tyndal vs National

Education Association as the case cited to affirm the

District Courts ruling to state that Mrs. Filoso had not

made a prima facie case of discrimination by PWCS, her

employer. The case is not sufficiently similar to apply the

adverse ruling by the Fourth Circuit Appeals Court.

A. In the Tyndal case where the employee was not coming to

work and leave requests were not work related to her

disability as they applied to her job. Tyndal's absences had

- nothing to do with accommodation issues once at work.

This was not the case with Mrs. Filoso to work all but 3

days during the Aug.-Oct. 2001 time period in question. Mrs.

Filoso although ill the week of Aug. 27, 2001 from non-

accommodation in her work place did not miss any time

from work.

ae es BR, 1 ae

HS Nag tN ET ES MEPAL SATII

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Berns Se a pe Den gad NON ees

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Mrs. Filoso reported to work each day ready and able to

do her job. It was failure of PWCS to provide the necessary

accommodations she had been assured she would have that

lead to time missed from the work day

Mrs. Filoso unlike Tyndall came to work.

Title 42 U.S.C., 12113(a) states, “A disabled employee

may be held to any performance criteria that are related and

consistent with business necessity, so long as the disabled

employee is given the opportunity to meet such performance

criteria by reasonable accommodation. Principal Gill is on

record that he did not do any of Mrs. Filoso's requests for

2001-2002.

Despite PWCS own documents showing that Mrs. Filoso

came to work all but three days and the time she left each

day PWCS has repeatedly misstated the facts to the court

regarding Mrs. Filoso’s missed time from work. PWCS

made the statement to the courts in stating that Mrs. Filoso

did not come work but seven days. PWCS continued to make

this assertion to the Appellate Court that Mrs. Filoso wasn't

coming to work altogether. Mrs. Filoso presented herself for-

work each day prepared to work.

The District Court also stated Mrs. Filoso wasn't coming

to work. Transcript p.21. This was in err as PWCS own

documents proved. App.C. 30.

A dispute exists as to the number of days Mrs. Filoso

reported to work.

PWCS post litigation also stated that Mrs. Filoso's

absences occurred around holidays and weekends post this is

not a factual statement. Despite proof in e-mails directly

relating illness from the sewer gas and pleading for

corrective action to be taken, PWCS's own air quality report

indicating the sewer gas in her work area, PWCS continued

to make this statement. The record also shows that when

toxic/hazardous substances are kept out of Mrs. Filoso's

work environment and reasonable accommodated there was

no attendance issue. App.C.22.

During Tyndall's tenure it is clear from the record that her

employer worked with her to make every effort to

accommodate and granted her accommodations for her

. disability. Id. 31 F.3d 209,*211. This issue is clearly in

dispute in Mrs. Filoso's case.

The Tyndal also court ruled that despite her employer's

efforts to accommodate her disabling condition, we hold that

she was not a “qualified individual with a disability"

protected by the ADA. Tyndall, 31 F.3d 209,*211.

Unlike Tyndal, Mrs. Filoso's employers when aware of her

disability and requests from herself, Dr. Smith and PWEA

representative Mr. Caudil disregarded their requests and

instead of relying on information from any medical source

relied on information that Personnel Director, Mr. Fitzgerald

had obtained from an unknown source.off the Internet. A

fact not shared with anyone until a Fact Finding Hearing

occurred in May 2002.

The Seventh Circuit has addressed this issue and _ stated

- that under 29 C.F.R 35.130 ..."public entities are required to

ensure that their actions are based on facts, applicable to

individuals and not on presumptions as to what a class of

Illinois Dept. of Transportation. 148 F.3d 800 (7 Cir.

1998). App.C.9.

There is a complete dispute of facts as to whether PWCS

made any accommodations for Mrs. Filoso that would allow

her to do her job in 2001-2002. Mrs. Filoso unlike Tyndall

came to work.

Unlike the Tyndall case there is clearly a dispute of facts as

to whether accommodations were made for Mrs. Filoso and

there are significant discrepancies regarding attendance

presented to the courts by PWCS.

TA MONO aes

1¥

2. The court erred when it didn't consider that PWCS

did not assign Mrs. Filoso to a vacancy that she qualified

for that would have provided effective accommodation.

The issue of a vacancy existing that would have allowed

Tyndall to do her job was not an issue.

Mrs. Filoso had notified and provided supporting

documentation six months prior to needing it for a room with

a window for the 2001-2002 school year.

Mrs. Filoso has shown that there existed a vacancy at

Brentsville H.S and PWCS does not deny that the vacancy

existed at the time Mrs. Filoso made her accommodation

requests for the 2001-2002 school year. This vacancy would

have fulfilled the accommodation request of a room with a

window, had an independent air supply, faced the back of the

building away from the buses, had completed the renovations

over a year ago to the building and being a science lab as a

requirement after Mrs. Filoso was placed on administrative

leave. The Court asked PWCS counsel if any of their schools

had labs with open able windows and counsel replied she

didn't know. Transcript 15. Counsel didn't know because

Fitzgerald never considered transferring Mrs. Filoso to

Brentsville. Mrs. Filoso’s counsel was asked if she had asked

for a transfer. Counsel responded not directly, however,

counsel was in error as transfer was on the table as evidenced

by Filoso's inquiry at their July 2001 meeting regarding her

teaching/building assignment. The Third, Fifth, Ninth, and

Tenth Circuits have ruled on the issue of assigning to a

vacant position.”

‘In Smith v Midland rakes, the Tenth Circuit stated, ‘

expressing a desire for reassignment, an employee ee not

use magic words. But, the employee must convey to the

employer a desire to remain with the company despite his or

her disability and limitations. Taylor v Principal Financial

Group, Inc. 93 F.3d 155, 165 (5 Cir. 1996). The employee

should provide enough information about his or her

Filoso wasn’t even considered because it was also their

belief she will experience excessive absences. App.D.11.

This statement is indicative of the attitude of PWCS towards

Mrs. Filoso's disability, their unwillingness to discuss

options with her and their failure to investigate an effective

accommodation. Filoso was qualified for the vacancy. It is

well documented by the Prince William Health Department

and VOSHA that PWCS had a working knowledge of the

serious risk factors to the schools occupants as related to the

poor indoor air quality.

The Ninth Circuit Court stated..."As long as a reasonable

accommodation is available to the employer that could have

plausibly enabled a handicapped employee to adequately

perform his job, an employer is liable for failing to attempt

the accommodation." Kimbro v Atlantic Richfield Co., 889F

2d 869

In addition "Failure to consider the possibility of reasonable

accommodation for known disabilities if it leads to discharge

for performance inadequacies resulting from the disability

eee ES

limitations and desires so as to suggest at least the possibility

that reasonable accommodation may be found in a

reassignment job cont. within the company. In expressing a

desire for reassignment, an employee need not use magic

words. but, the employee must convey to the employer a

desire to remain with the company despite his or her

disability and limitation. Taylor v. Phoenixville School

District. F.3d , No. 98-1273, 1999 WL 184138 at *12

(3 Cir. 1999); Hendricks-Robinson v. Excel Corp., 154

F 3d 85, 694 (7" Cir. 1998) (A” request as straightforward as

asking for continued employment is a sufficient request for

accommodation."); EEOC Guidance, at 8 ("To request

accommodation, an individual may use ‘plain English’ and

need not mention the ADA or use the phrase 'reasonable

accommodation’ .")

2°

amounts to discharge solely because of the disabilities."

Despears V Milwaukee Court, 3 F.3d 635, (7"" Circuit 1995).

The Third Circuit has stated that transfer to a job that an

employer knows an employee cannot do, even though that

job may have the same pay and benefits can be consider to

be an actionable adverse employment action. Dilenno v

Goodwill Industries of Mid-Eastern Pennsylvania, (Third

Circuit). The Fourth Circuit has a similar ruling in Boone v.

Goldin(Fourth Cir. 1999).

Transfer of Mrs. Filoso from Forest Park H. S. was also

later shown to be a complete necessity. Principal Gill had

information that he never shared with Mrs. Filoso, Dr. Smith

or Mr. Caudill. Principal Gill stated at the Fact Finding

Hearing that he had considerable experience with sewer gas

issues at Hylton H.S.during the nine years he was there.

Hylton also a Prince William County school has the same

design as Forest Park and also experiences sewer gas.

3. PWCS failed to "act in good faith" in the interactive

process to find an effective accommodation, and willfully

failed to make any requested accommodation for the

2001-2002 school year and whose failure to do so caused

the adverse employment action.

Prince William County Schools, (PWCS) would have the

courts rule that an employer may ask for documentation for a

disability and necessary accommodations and then totally

ignore the interactive process with the employee to find an

effective accommodation. This is allowed only when the

solution is obvious and effective.

First and foremost in any discussion of accommodation for

Forest Park H.S. it must be remembered that because Mrs.

Filoso was not transferred to the vacancy at Brentsville H_S.

Title 29C.F.R &1630 (0)(3) states that it "may be

necessary" for the employer to engage in the interactive

process. The EEOC's interpretive guidelines state that once

an employee requests accommodation, the employer "must

make a reasonable effort to determine the appropriate

accommodation." 29 C.F.R. pt. 1630, App. & 1630.9 at 359.

The guideline continues that in some instances when it is

clear what accommodations will work it is not needed.

This was never the case with Mrs. Filoso. Her

accommodations are not obvious and require discussions

with her. This did not happen.

Mrs. Filoso was told in Mr. Fitzgerald's April 26, 2001

letter not to make any additional requests and that her

requests were incredulous.

Finding a workable accommodation for Mrs. Filoso

required effort on the part of PWCS to obtain information

about various buildings, their air systems, cleaners and

consulting with Mrs. Filoso. None of these happened.

Mr. Gill stated he did not do any of Mrs. Filoso’s requests

for the 2001-2002 year. This is also evidenced by Mrs.

Filoso, Mr. Caudill, and Dr. Smith continuing after the

school year had begun to make the same accommodation

requests that had begun in March 2001 the year before. It is

also in Mr. Fitzgerald's testimony at the Fact Finding

Hearing that he knew Mrs. Filoso was being assigned to a

room with no windows.

Mrs. Filoso was assigned without any input from herself

back to teach at Forest Park. The comment made with that

assignment was that the school had been declared safe, it was

not. She was also assured that the accommodations in her

doctor's letters would be done. These were not done.

With no discussion with Mrs. Filoso the accommodation

of being allowed to teaching the year before in a room with a

window at Forest Park to allow additional ventilation was

taken away for the 2001-2002 school year. Mrs. Filoso was

instead placed in a "standard" work environment as Mr.

Fitzgerald had demanded that she teach in his April 2001

letter.

The school system had sent Dr. Smith a letter in which they

carefully crafted the wording of the information so Dr. Smith

was completely unaware that they were talking about the

same room under the same conditions that Mrs. Filoso had

gjA

asked to be removed from the year prior. Based on the

information the school system provided, he stated in a letter

that the accommodations” appeared reasonable”. When Mrs.

Filoso found out in August 2001 that the school system had

not done the accommodation that Mr. Fitzgerald stated they

would, she immediately contacted her PWEA, Alan Caudill.

Upon learning that they had also given Dr. Smith false and

misleading information she had him write another letter on

her behalf asking for the accommodations once again. Dr.

Smith in his testimony at the Fact Finding Hearing directly

stated that he hadn't been given complete and accurate

information when he made the statement “appear

reasonable."

Upon returning to work Mrs. Filoso began

experiencing breathing difficulties on the first day. She

notified Principal Gill that the room was not working.

Principal Gill had clear notice that the room that he had

chosen to assign Mrs. Filoso to was not effective. An

accommodation is only an accommodation if it is effective.

The EEOC Enforcement Guidance notes that "an

employer must consider each request for reasonable

accommodation," and that "[I]f a reasonable accommodation

turns out to be ineffective and the employee with a disability

remains unable to perform an essential function, the

employer must consider whether there would be an

alternative reasonable accommodation that would not pose

an undue hardship." EEOC Enforcement Guidance on

Reasonable Accommodation, at 7625.

The employer's obligation to engage in the interactive

process extends beyond the first attempt at accommodation

and continues when the employee asks for a different

accommodation or where the employer is aware that the

initial accommodation is failing and further accommodation

is needed. This rule fosters the framework of cooperative

problem-solving contemplated by the ADA, by encouraging

employers to seek to find accommodations that really work,

and by avoiding the creation of a perverse incentive for

employees to request the most drastic and burdensome

accommodation possible out of fear that lesser

accommodation might be ineffective.

By failing to "act in good faith" in the interactive process,

particularly in the Aug.-Oct. 2001 time frame an "act of

harm" was committed against Mrs. Filoso by Principal Gill

and Mr. Fitzgerald. Both intentionally disregarded the fact

that placement of Mrs. Filoso in a room without a window

was causing her harm.

PWCS delay in officially responding to Mrs. Filoso's

request to a room with a window came six weeks after

school had begun. This delay caused exacerbation of Mrs.

Filoso's disability on a daily basis. Mrs. Filoso is reporting

to her administration she must leave due to her illness.

Failure to take the appropriate measure to insure Mrs.

Filoso’s safety shows deference to Mrs. Filoso's health, the

ADA requirement of the interactive process or of a timely

resolution to the issue. Such delays by PWCS only served to

intensify Mrs. Filoso's disability.

In Bultemeyer 100 F 3d (Seventh Circuit) 1285 The court

stated " The interactive process would have little meaning if

it was interpreted to allow an employer, in the face of a

request for accommodation simply to sit back passively,

offer nothing and then, in post litigation try to knock down

every specific accommodation as to burdensome."

The interactive process is crucial in finding effective

accommodations to allow an employee to do their jov. Mrs.

Filoso provided all documentation that her employer asked

for, she asked for accommodations prior to any adverse

employment actions, she notified her (teacher association

representative to help intercede on her behalf) again prior to

any adverse actions, she notified her building principal, Mr.

Gill and assistant principal, Carolyn Custard prior to any

adverse actions that accommodations were not be done

during the 2001-2002 school year. Mr. Caudill on her behalf

also notified Personnel Director and 504 compliance officer,

9¢/

Rick Fitzgerald of the need to accommodate Mrs. Filoso and

continued to ask on her behalf for those accommodations.

A later response came from Mr. Gill in connection with the

Grievance process that the school system now claimed in Oct

2001 that Mrs. Filoso did not have a disability for the first

time. A statement never made to Mrs. Filoso, Dr. Smith or

Mr. Caudill. It was also made in response to Mrs. Filoso

filing grievances for non- accommodation... Principal Gill

also stated that he did no requests of accommodations for the

2001-2002 school year.

Mrs. Filoso's assigned classroom for the 2001-2002

school year was identical to every other earth science room

at Forest Park. It was the "standard" classroom that

Fitzgerald had demanded she seek medical attention to be

able to teach in. It had the same HVAC system, no

windows, same cleaners used. Although she was allowed to

use her charcoal air filter other teachers without disabilities

had fans in their rooms. The school system didn't even

attempt to find an alternative wax or change their cleaning

schedule so that the waxing was completed be teachers

reported to work. Waxing continued the first week Mrs.

Filoso was back in the building. She was expected to attend

meetings in rooms that didn't even have an air filter.

Despite evidence to the contrary concerning reasonable

accommodations Judge Brinkerma stated, in this case, I think

the school system made reasonable accommodations and that

with those accommodations; she was unable to perform the

essential functions of the job because she simply wasn't

coming to work. Transcript p.21. The issue of coming to

work has already been shown not to have been presented to

the court accurately as she did report to work. In Tyndall the

court stated she "failed to establish that her discharge was

motivated by bias against disabled employees or desire to

avoid making reasonable accommodation. Mrs. Filoso has

shown both existed.

I. The Fourth Circuit using Matvia v Bald Head Island,

person would not have felt compelled to resign errs on

the issue that consideration must be given as it relates to

a person with a disability whose disability is affected by

the employers actions. The case is also not sufficiently

similar to warrant its use in Mrs. Filoso's case for

retaliation/constructive discharge on a number of

grounds.

A. The Matvia case was decided on the issue of whether

the employer had an affirmative defense to Title VII liability.

The employer in that case suspended the supervisor without

pay for four days and when behavior continued was

terminated. Matvia 259 F.3d 261.

PWCS could not claim this defense. While Filoso

was’ acting in good faith" providing the documents

requested of her, notifying her employer of obstacles to her

doing her job prior to adverse actions. PWCS is acting in

"bad faith". As numerous e-mails indicate there was no

action taken by anyone in regards to Mrs. Filoso reporting

the non-accommodation in 2001-2002. Failure on the part of

Principal Gill to even respond to the accommodation

requests in a timely manner or merely to say no. Failure to

correct derision remarks in e-mails about Mrs. Filoso's

disability and requested accommodations by Principal Gill,

Renee Campbell, Assistant in Personnel and Mr. Fitzgerald.

Mr. Fitzgerald as 504 Compliance Officer was responsible

for insuring that the Rehabilitation Act was complied with

and instead engaged in the e-mail banter of "another nail in

her coffin," "let the games begin," " must be magic in the

air," "she likes the alliteration," “plea for a switch” "Wwe

know she is sick," "we'll see how long that lasts,” "Bubble

Boy".

These actions clearly demonstrate a complete disregard

for Mrs. Filoso’s rights under the ADA. The secret file on

her is a violation of school board policy this documentation

was for the sole purpose of termination of indicating scrutiny

that no other employee had.

{

Sec Hk er Rd ER ea let hd

’

B. In Matvia the wires did not immediately report the

behavior. Mrs. Filoso immediately reported the non-

accommodation by Principal Gill to Mr. Caudill who spoke

directly with Mr. Fitzgerald. Mrs. Filoso believing that a

public school system knows the requirements of the ADA

and Rehabilitation Act would follow the law. Instead of

correcting the behavior causing Mrs. Filoso "an act of harm"

they relished in it. Mr. Fitzgerald even admits his remarks

were "an attempt at humor" in his testimony at the Fact

Finding Hearing.

The Tenth Circuit held in Selenke v Medical Imaging of

Colorado(Tenth Cir. 2001),. that where an accommodation is

delayed an employer does not violate the ADA, as long as

the employee receives some other accommodation or at least

does not suffer adverse employment action". PWCS did not

respond to the request for a window for seven months and

then the answer is no. PWCS offered no alternatives and

reprimands and terminates Filoso for time missed due to

their non-accommodations

This complete failure on the part of PWCS to respond

clearly shows that the employer deliberately made her

working conditions so intolerable by demanding for her to

continue to work in an environment they knew was

ineffective and had not worked the prior year. This caused

injury to her disability on a daily basis so that the expected

outcome would be for her to quit.

Judge Brinkerma quoted Mr. Gill's Sept. 18" letter.

"That the letter stated, "If you have a bona fide illness

requiring you to miss work, you must provide me with a

signed physician's letter indicating the reason within three

workdays of your absences," etc.. etc. "If you have any

unexcused absences in the rest of the school year whether

from coming in late, leaving early, or not coming in at all,

I will have no choice but to recommend the termination of

your employment. Transcript p.23. (Principal Gill stated

in testimony at Fact Finding Hearing that he had no

reason not to believe that Mrs. Filoso was ill as Dr.

Smith's return to work certificates stated.)

Judge Brinkerma then stated, "And then a few days

later, the absence continued, and | feel therefore that

there's absolutely no evidence in this record that would

support the inference that the termination was taken out

of retaliatory reasons." Transcript p.23.

What Judge Brinkerma failed to consider in her

interpretation of retaliatory actions were the facts that:

Mrs. Filoso complied with the letter from Mr. Gill dated

Sept. 18'". She provided the documentation for her

leaving early as they stipulated, brought in the notes

within 3 days. Despite this fact Gill still recommended

her for termination.

Principal Gill's own statement that he didn't do any of

Mrs. Filoso's requests for the 2001-2002 school year.

Principal Gill's claimed after recommended for

termination and grievances filed that Mrs. Filoso had no

disability. -

They had deliberately placed Mrs. Filoso in a school with

no windows in the science rooms.

Principal Gill's created a hostile environment with their

e-mail banter of derision remarks regarding Mrs. Filoso's

disability and illness from non-accommodation.

Waited with the knowledge that Mrs. Filoso disability

gets progressively worse with repeat exposures. Causing

her to leave early and don't respond to such knowledge.

(Particularly disturbing is that fact that sewer gas is

in the building again prior to Mrs. Filoso being place

on Administrative leave. Principal Gill knowing how

sick Mrs. Filoso got from it the previous year fails to

alert her that toxic gas is in the building so that Mrs.

Filoso could act accordingly. ) Mrs. Filoso sent an e-

mail asking if it is toxic sewer gas that she is smells and

received no reply. It is no coincidence that Principal Gill

two hours after the e-mail was sent reporting hazardous

11.

12.

13.

14,

16.

conditions in her building for the second year Gill is

telling her that he will not even consider a one week trial

in aroom with a window.

When the complaint is made the current assignment is

ineffective, Mr. Fitzgerald made no contact or attempt to

find an alternative or give guidance, despite being the

504 Compliance Officer the entire six weeks this is going

on.

Principal Gill is verbally told by Mrs. Filoso on

September 9"" that she is meeting with PWEA and

attorney over the situation.

Placed the wrong type of air filters in her room.

. Carefully crafted their every statement to Mrs. Filoso,

scrutinized and recorded her every comment in violation

of their own policy.

Violated their own policy of requiring an employee to

work in an environment hazardous to themselves or their

students. Both Mr. Fitzgerald's April 26" letter and

Principal Gill's September 18 th letter demanded just this

for Mrs. Filoso's disability.

Both Mr. Fitzgerald and Mr. Gill made the statement that

Mrs. Filoso had made a report to VOSHA. Mrs. Filoso’s

name is written across letter from VOSHA.

Mrs. Filoso is treated differently then other employees

who report accident/injury/illness due to work. Other

employees are allowed to go home; allowed days/weeks

off from work and do not receive letters of reprimand for

time missed. PWCS own OSHA logs

No First Accidents Reports are filed on Mrs. Filoso for

2001-2002.

. Patiently counted the days and documented every word

in a secret file, and waited until they could attempt to

claim too many absences. .

Mrs. Filoso is treated differently then other employees

who report accident/injury/illness due to work. Other

employees are allowed to go home; allowed days/weeks

4 4

off from work and do not receive letters of reprimand for

time missed. PWCS own OSHA logs

17. No First Accidents Reports are filed on Mrs. Filoso for

2001-2002.

18. Mrs Filoso was involuntarily transferred from Brentsville

HS. in June 2000 because the principal stated that, “she

couldn’t be trusted not to get sick.” This despite the

renovations that were causing Mrs. Filoso to become ill

would be completed. App.C.25.

The District Court erred when Judge Brinkerma stated

there was no causal connection. Judge Brinkerma looked

only at attendance and not of the protected actions and the

reaction by PWCS to those actions. One must look at the

totality of all the actions and not view in isolation an

incident/fact.

A position became available in Jan. 2002 for an earth

science teacher to teach an online class. Mrs. Filoso was still

an employee on Administrative leave and she was never

once informed about or asked if she would like to teach the

course. Mrs. Filoso could have taught this class from home.

PWCS had no intention what so ever of Filoso remaining an

employee under any circumstance.

Mrs. Filoso's has shown that in can be reasonably inferred

that she was deliberately assigned to a work environment

were the predicted outcome would be time missed from work

This deliberateness on the part of PWCS was because they

viewed her as a liability, it was easier to find another teacher

who didn’t need accommodations to replace her with, they

didn’t want to have to make any changes to their “standard”

classrooms as they have stated, they wanted someone who

would not contact VOSHA and the EEOC, they simply

wanted someone who could tolerate the air quality issues

in their building as they stated others could.

3’

CONCLUSION

For the foregoing reason, the decision of the Court of

Appeals should be reversed, and this litigation should be sent

to court for trial. Mrs. Filoso respectfully requests this court

grant the Petition of Certiorari.

APPENDIX A

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

PHYLLIS FILOSO )

Plaintiff, )

)

Vv ) Civil Action No. 02-1385-A

)

PRINCE WILLIAM COUNTY )

SCHOOL BOARD )

)

Defendant,

ORDER

_ For the reasons stated in open court, defendant’s Motion for

Summary Judgment is GRANTED, defendant’s Motion in Limine to

Exclude Expert Testimony is DENIED AS MOOT, and it is hereby

ORDERED that judgment be and is entered in favor of the

defendant.

The Clerk is directed to enter judgment in defendant’s favor

pursuant to FED.R. Civ. P. 58 and to forward copies of this Order to

counsel of record.

Entered this 3 day of July, 2003.

Leonie M.Brinkema

United States District Judge

Alexandria, Virginia

APPENDIX B

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 03-1943

————— ae

PHYLLIS FILOSO, Plaintiff- Appellant,

Versus

PRINCE WILLIAM COUNT SCHOOL BOARD

Defendant-Appellee.

Appeal from the United States District Court for the Eastern District

of Virginia, at Alexandria. Leonie M. Brinkema, District Judge.

(CA-02-1385-A)

Submitted: November 19, 2003 Decided: December 3, 2003

Before WILKINSON and GREGORY, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Phyllis Filoso, Appellant Pro Se. Mary Ellen McGowan,

SICILIANO, ELLIS, DYER& BOCCAROSSE, Fairfac, Virginia, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Phyllis Filoso appeals from the district court’s order granting

summary judgment in favor of her former employer on her claims

alleging discriminatory treatment in violation of the Americans with

Disabilities Act (ADA), 42 U.S.C. & 12101-12213 (2000). And Title

VII of the Civil Rights Act of 1964, 42 U.S.CE 2000e (2000). We

have reviewed the record and find that Filoso failed to establish a

prima facie case of disability discrimination under the ADA, Tyndall

v. Nati’l Educ. Cntrs., 31 F.3d 209, 212-16 (4" Cir. 1994) or

retaliation under Title VII, see Matvia v. Bald Head Island , Mgmt.,

Inc., 259 F.3d 261, 271 (4" Cir. 2001). Accordingly, we affirm the

award of summary judgment to the Defendant. We deny Filoso’s

motion for oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.

We deny the Appellee’s motion to strike Filoso’s informal reply

brief.

APPENDIX C

In The

United States Court of Appeals

For the Fourth Circuit

Record No. 03-1943

Phyllis Filoso Appellant, (Pro Se)

Prince William County School Board

Appellee

‘ APPELLATE BRIEF

Phyllis Filoso Mary McGowan, ESQ

212 Foresail Cove Jennifer Porter, ESQ

Stafford, Virginia 22554 Sicilliano,Ellis,Dyer

540 659 1215 Boccarosse

Pro Se 10521 Judicial Drive,

Suite 300

Fairfax, Virginia

22030

703 385 6692

Counsél for Appellee

Jurisdiction

Appeal of Summary Judgement in The United States District

Court For the Eastern District Of Virginia, Alexandria

Division entered July 3, 2003 by Judge Brinkerma.

Requests the United States Court of Appeals for the Fourth

Circuit vacates and remands for jury trial this case.

Summary judgement is appropriate under CFR rule 56(c)if

there is no genuine issue as to any material facts.

Anderson v. Liberty Lobby, Inc., 477 US 242, 256, 106 SCt

2505, 2514, 91 Led2d (1986)

Ms. Filoso is the Appellant in this case and is proceeding pro

se.

Ms. Filoso will refer to herself in the third party as Filoso

Prince William County School Board, Appellee will be

referred to as PWCS. Prince William Education Association

will be PWEA and Alan Caudill one of their representatives

will be Caudill. . Tom Gill, Principal at Forest Park will be

referred to as Gill. Rick Fitzgerald, Director of Personnel and

504 Compliance Officer will be referred to as Fitzgerald.

The judge stated that the record in this case is voluminous.

Tab | p.20. As such, Filoso believes that the court

erroneously overlooked important documents that supports

Filoso's claims that summary judgement was inappropriate.

Only in a trial can all the evidence be properly presented.

Filoso will also point out in the record that the court when

faced with conflicting evidence took the side of the moving

party

Issue #1 on Appeal.

|. Whether Filoso has presented evidence for a prima facie

case for disability discrimination or regarded as an individual

with a disability and discriminated against. Filoso asks the

court to vacate summary judgement for appellee and remand

for trial.

Supporting Facts and Argument:

1. Statement of Facts

Filoso has a breathing difficult when exposed to a wide

variety of chemicals both at work and in her daily life.

Principal Mulgrew began regarding Filoso as having

a disability as early as May 2000 and asked for

guidance as it being a possible 504 issue. Tab 6

Filoso was an employee of PWCS for eight years prior

to her termination.

Filoso was employed as a science teacher by PWCS.

Filoso was primarily an Earth science teacher for the last

Six years.

Filoso engage in numerous requests for reasonable

accommodations from her employer beginning in April

2000 and ending in October 2001 when she was place

on Administrative Leave pending termination on July

25, 2002.

Complete statement of facts have already been entered

in the lower court.

Filoso would ask due to the large volume of facts that she

has cited them in her argument that apply.

I. In order to establish a prima facie case for discrimination

one must apply the following 3 prong test: 1. An individual

has a disability within the meaning of the ADA. 2. He is

otherwise qualified to perform essential functions of the job

with or without reasonable accommodation 3. He has

suffered an otherwise adverse employment decision as a

result of discrimination.

1.Disability

The court on July 3 2003 that for purposes of this analysis

that the plaintiff (Filoso) does have a disability that impairs a

major life function, that is, breathing im this case. Tab | p.20.

2. A.Reasonable Accommodation

An employer must look at the employee at the time the

accommodation request is made and not project what may or

may not work it the future. Employee's accommodation is

based on what employee is capable of doing with

accommodations at that point in time when request is made.

Meyers v Hose (fourth circuit),

Roberts v. Progressive Independence Inc., Nos. 98-6062, 98-

6098 (Tenth Cir. July 13, 1999)

As an employer PWCS had duty to provide Filoso and all

it's employees with a safe and healthy work environment,

Virginia Code. There is ample evidence from the Prince

William County Health Department and Virginia

Department of Labor and Industry that this was not the case

at either Brentsville H.S. Tab 2. Gill admitted that sewer

gas was a chronic issue at Forest Park and that PWCS

agreed to do the preventative maintenance steps in their

response to VOSHA in June 2001. Tab 3 Sewer gas is

toxic. Tab 4 Forest Park continued to have sewer gas the

following year indicating that the required maintenance

wasn't being done. Tab 34

The Court specifically asked if there were any windows at

any of defendants other high schools. Tab 1 p.15. PWCS

Counsel could not answer because Fitzgerald, personnel

director never considered such.

Counsel for Filoso was in error when she stated that Filoso

hadn't directly asked. Tab 1 p.20. Filoso had indicated her

willingness to transfer and specifically mentioned Brentsville

and it's windows at the May 2001 meeting with Fitzgerald.

This meeting was held in response to Fitzgerld's April 26""

letter in which he stated among other things to discuss

employment options. Tab 10 Filoso also testified at Fact

Finding Hearing "He again asked me if I stil] planned on

working for PWCS."At July meeting they were looking at

possibly moving me, then he stated that nobody has had air

quality test like Forest Park. Mr. Caudill and myself asked

for a copy of report. He said he didn't have it "He said he

was told it was ok and wanted more specifics from my

doctor." Tab 7 p. 239 This is also evident in the e-mail

where Filoso is asking what school she was going to be

assigned to. Tab 9 p.239.

Gill and Fitzgerald had full knowledge of Filoso's request

for a room with a window in March 2001 and again on

April 25, 2001. Tab 10 Prince William Education

Association Representative for Filoso (Caudill) asked

Fitzgerald if they needed to meet on this issue. Tab 9. The

response from Fitzgerald was, there are other positions but

She would be assigned to Forest Park. Tab 9

Defendant had an Earth Science vacancy for the 2001-2002

school year at Brentsville H.S. EEOC appendix 88

Hendricks-Robinson. This position would have satisfied

Filoso's and her Dr. request of a room with a window and

separate Heating/Ventilation/Air Conditioning (HVAC).

Fitzgerald as Director of Personnel had full knowledge of

opening and vetoed it and instead assigned Filoso back to

Forest Park. Tab 9

Brentsville did not have a history or likely hood of sewer gas

problems, bus exhaust entering the building, the earth

science room,(room faced the back of the building away

from bus area and renovation work had been completed a

year prior.

Gill and Fitzgerald with full knowledge of Filoso's need

for a room with a window/separate HVACA system chose

to retain Filoso at Forest Park H.S. Tab 9 When defendant

informed Filoso of this decision there was no mention that

her or her doctors accommodation request would not be

honored. Tab 12. In fact Fitzgerald specifically state they will

comply with doctor's accommodations. Tab 12 There was

no mention of any undue hardship or her requests being

overly burdensome. 28CFR 35.150(a)(3) all documents

produced have only been done so post hoc. Not produced

for Filoso's Fact Finding Hearing either. In fact at Filoso'

Fact Finding Hearing Gill directly states that he doesn't

know the costs. Tab 14 p.258. At Filoso's hearing she

specifically states that according to building engineer it's

a simple process to disconnect. Tab 13. EEOC question

#24 requires policy modifications, EEOC Reasonable

Accommodation Guidelines here after referred to as

(EEOC) (112) EEOC ques.45, EEOC Undue Hardship

(112) Generalized conclusions will not suffice to support

a claim of undue hardship. Assessment factors were

never used by PWCS. Gill never gave Filoso a reason for

rejecting her requests for separate HVAC, different cleaning

products before rejecting it. This prevented any discussion

or alternatives accommodation being found. Skerski v Time

Warner (3™ Circuit Appeal).

By Fitzgerald choosing to assign Filoso back to Forest Park

PWCS then had duty to provide the necessary

accommodations that would have allowed Filoso to do her

job at that school. PWCS did not do this. Gill states that he

didn't do any requests for the 2001-2002 school year. Tab

1S p.268. Gill provided completely ineffective room

assignment with none of the requested accommodations

other than Filoso being allowed to use her own personal

charcoal air filter.

Giil's assignment of Filoso to inside room with no

window/separate HVAC system was never an effective

alternative and Gill knew that as it that room had never

worked the year before. No modifications to HVAC had

been done. No window installed in that room. No change in

cleaning products particularly the wax. Gill is on record

that he checked with custodial staff and response was

“approved wax through plant operations. Tab 16 p. 228. It is

completely unreasonable for Gill to even contemplate

that such a room would be an effective accommodation.

Fitzgerald and Gill set Filoso up to fail.

Humphrey v Memorial Hospitals Association No. 998-

15404, (9" cir. 2001). Borkowski v. Valley Central School

District, 63 f£.3d 131, 143 (2™ cir. 1995). Barnett V U.S. Air,

228 F.3d 1105, 1114 (9" Cir.2000). "Id. At 1115

Gill and Fitzgerald have made several statements that Filoso

had a room with a window and that didn't work. It did

work until April of 2001. In April Filoso reports the room

isn't working because of sewer. gas coming in through the

HVAC it then falls on PWCS to correct the situation that

Filoso had first reported previously months ago. Tab 54.

Filoso asks for Gill and AP,Custard to come to her room to

discuss odor issue. Gill's own document indicates he's still

not telling her it's sewer gas or acknowledging the problem.

He goes out of his way to state that at 7:30 a.m. he doesn't

smell it at (that exact moment). Filoso tells him according to

paramedics it's not good to be breathing. Tab 17. Filoso

offers suggestions for accommodations and Gill states that

he didn't do it because of the cost involve post hoc and at

the time the request is made simply says NO. Tab 17.

leliberty v Kemper Corp, Roberts v Progressive

independence, The EEOC Enforcement Guidance, GET #

Filoso and her doctor had asked in March/April 2001 for

a room with a window for the following year. Tab

18(protective order (p.o.)

It is the Gill that chose not to make the accommodations

that would have allowed Filoso to work a full day at Forest

Park for the 2001-2002 school year after they decided to

reassign her back to Forest Park.

Filoso showed up each day prepared to teach and fulfill

her duties and when unable to remain a full day due to

nonaccommodation. Filoso provided lesson plans for the

substitute. Filoso did this while continuing to ask for the

accommodations she was told she would have when

Fitzgerald placed her back at Forest Park.Tab12.

Had defendant been honest and up front with Filoso about

what accommodations they were going to make or in this

case not make when Filoso asked for the window in

March/April we would not be in court today. Filoso could

have been reasonably accommodated at another school.

Brentsville H.S. had an opening that would have fit Filoso's

requests.

42 U.S.C. & Section 1211(9) of the ADA requires an

employer to reassign a disabled employee to a vacant ~

position for which the employee is otherwise qualified.

Gile v United Airlines, 95 F.3d at 498-99.Hendricks-

Robinson, 154 F.3d 694-95; Dalton v. Subaru-Isuzu

Automotive, Inc., 141 F.3d 667, 678 (P Cir. 1998); DePaoli

v. Abbott Laboratories, 140 F.3d 668, 675 (7" cir. 1998)

Even in Smith v Midland Brake, Inc. No. 96-3018 (Tenth

Circuit 1999), (court stated reassignment only if employee

could have been accommodated in current position but

would experience undue hardship in doing so). Gill

specifically states he turned down request because of cost

after the fact. Tab 14. Not because she couldn't be

accommodated.

Legislative history further supports this reading of the ADA.

H.R. Rep. No. 101-485(I1), at 63 (1990), reprinted in 1990

U.S.C.C.A.N. 303, 345

EEOC Interpretive Guidance, 29 C.F R. Pt. 1630.

If Gill is to be believed that he informed Filoso in April 2001

that she would not be allowed a room with a window for the

following school year, then as principal he had the

obligation to inform personnel of that decision so that

other options could be explored. Filoso had complied with

his request of a letter from her doctor stating the necessity of

a window for her. Tab 18. Filoso's statement is that she was

not given an official answer until Oct. 2001. Tab 19 then

defendant is still under obligation for either not trying to

find alternatives or delaying the interactive process.

Here the record becomes very contradictory. Gill states he

informed Filoso in April 2001 in his deposition. Tab 20.

Filoso states she was not told this, did not learn she was

assigned to a room without a window until the end of

Aug. 2001 when she reports to school. Tab 21.

Gill's statement is incorrect, as the record will show. Record

shows Filoso has a meeting with Gill in March. Filoso states

that she was told at the March meeting with Gill that he

would have to check with science supervisor and get back

to her and for her to bring in a letter from her doctor Tab

22 p. 209-210. Filoso brings letter from doctor about the

window on April 25". Tab 23.(p.o.) The next meeting is at

her request in her room about sewer gas odors. Tab 17. Next

communication is May 7™ asking about odors so she can

return to work. Tab 24 Filoso was out on leave after May

2™’ Gill had no further conversation or letters with Filoso

about anything until Aug. 2001 when school is about to start.

Tab 67. Filoso dealings where only with Fitzgerald in May

and early July. Inference from documents proves that

Filoso's version is accurate as she states on April 25" in

memo “here's the letter from my doctor."Tab 17 Gill is also

on record that he NEVER wrote to Filoso's doctor or Filoso

about expense or difficulty. Tab 14 p.258. Either scenario

caused Filoso not to be assigned to a more suitable position.

In either case Filoso has fulfilled her duty of asking for the

accommodation. Filoso went further and had a meeting with

Fitzgerald per his April 26"" letter on May 10'" to discuss

disability and reason of sewer gas for absences. Fitzgerald

responds by stating that he'd have to do some checking to see

if she had a disability.. Fitzgerald writes Filoso the June -

letter in response to their meeting where it's stated she has a

disability. Tab 26. Filoso complies with a letter from her

doctor on June 28"". Tab 27. Filoso meets one more time with

Fitzgerald in early July and then hears nothing in response.

Tab 7 p. 239. Filoso had supplied the necessary information.

It was then incumbent on the defendant to engage in an

interactive process to determine an effective location and

room assignment. This was not done.

Fitzgerald stated that he obtained informaticn about

Filoso's illness from the Internet not from any medical

person. Tab 28 p. 129. Fitzgerald in his actions concerning

Filoso clearly indicate in his July 2001 and August 2001

letter that he is not acting on information he obtained

from Filoso or her doctor but on information he obtained

from the internet. T 28p.129

Also of note is that Fitzgerald did not obtain information

from the Dept. of Justice, Dept. of Labor, Job

Accommodation Network division of Dept. of Labor (JAN),

or Virginia Dept. of Education Compliance Division. All

sources that as 504 Compliance Officer he would access to

for accurate information and be required to do as 504

Compliance Officer. EEOC Enforcement Guidance ques.#5.

29C.F.R, pt 1630 app& 1630.9(1997)

Filoso in Oct. 2001 gives Gill packet from JAN on

accommodations and employer responsibilites. Gill states he

took a look but thought it was just something she got off the

Internet. Tab 25 p.283.

Fitzgerald and Gill don't try to accommodate based on

information about Filoso's disability how chemical

exposures affected her breathing and body from either

Filoso or her doctor but on some unknown source from

the internet. Defendant's choice of words and actions

following Fitzgerald's July letter clearly indicate they

considered this a psychological condition. As he now states

"It appears the source of Ms. Filoso's complaints remains

undetermined." Tab 29. Both Gill and Fitzgerald had been

told by Filoso and her doctor that sewer gas was causing her

the problem in April and May 2001.Tab 11. Air sampling

was done after the dates Filoso was complaining. Since they

now consider it not physical Fitzgerald and Gill decided

_ they didn't have to accommodate Filoso for the 2001-

2002 school year. As evident by Gill not making any

accommodations. Gill states that he did not do Filoso's

request for the 2001-2002 school year. Tab 15p.268.

Riemer v. Illinois Dept. of Transp., 148 F.3d 800 (7"" Cir.

1998). 28 CFR 35.130 "all provisions taken

together. ..consistent with these standards, public entities

are required to ensure that their actions are based on

facts, applicable to individuals and not on presumptions

as to what a class of individuals with disabilities can or

cannot do." "Further, school districts obligation to

negotiate about reasonable accommodation of employee

with bipolar disorder was triggered whether or not

officials knew specific name of her condition. Taylor v

Phoenixville School District, 184 F.3d i Cir. 1999)

The duty to accommodate is on going and doesn't stop

with the first request.

Ralph v. Lucent Technologies, 135 F.3d 166(1* Cir. 1998)

It was also employer's duty to communicate with Filoso

about sewer gas issue so that reasonable accommodations

could be made. This was not done. Gill purposely hid the

fact that it was sewer gas for seven months and never

resolved the problem with adequate professionals. This

causing Filoso to escalate her accommodation requests. Tab

Had Gill simply corrected the sewer gas issue back in Oct.

2000 by adequately addressing the problems Filoso would

not have had to ask for a separate HVAC system for her

room at Forest Park.

EEOC Enforcement Guidance on Reasonable

Accommodation, at 7625.

At the time Filoso was put on administrative leave neither

Fitzgerald or Gill discussed any alternative positions or

employment opportunities despite Filoso asking for

accommodations to allow her to do her job. Filoso could

have been a home bound teacher.

Fitzgerald as personnel director would also know at the time

that Filoso was being placed on administrative leave that the

virtual school which had an earth science position was also

coming available in three months that would be taught via

the internet. Earth science taught via the Internet does not

include any labs in any type of laboratory setting or school

setting.

Shirling, 90F.3d at 832,

Humphrey v Memorial Hospital No. 98-15404, (Ninth

Circuit 2001) Supreme court declined to disturb and let stand

an employers duty to reassign and the interactive process.

The vacancy at Brentsville that defendant had knowledge of

was a plausible assignment for Filoso.

In Giles v United Airlines At 1114-1115 (9" Circuit) the

court stated "The interactive process requires

communication and good-faith exploration of possible

accommodations between employers and individual

employees, and neither side can delay or obstruct the

process. Beck v University of Wis. Bd. Of Regents, 75 F.3d

1130,1135 (7" Cir. 1996) A party that obstructs or delays the

interactive process is not acting in good faith. A party that

fails to communicate by way of initiation or response,

may also be acting in bad faith. Employers, who fail to

engage in the interactive process in good faith, face

liability for the remedies *1138 imposed by the statue if a

reasonable accommodation would have been possible.

Barnett, 228 F.3d at 1116. Moreover, we have held that the

duty to accommodate "is a 'continuing' duty that is ‘not

exhausted by one effort." McAlidin, 192 F.3d

See also Templeton v Neodata Services, Inc., 162 F.3d 617,

619 (10" Cir. 1998).

Using PWCS document Tab 30 which objection has already

been made to as it is a summary. It indicates that there is no

attendance problem for Filoso when she is reasonably

accommodated by keeping hazardous,toxic, and chemical

irritants out of her workplace that is already required by

law. Filoso is already on record that there are inaccuracies in

document. Tab 31.

2. B. Interactive Process

/ 3

To establish that an employer failed to participate in an

interactive process, a disabled employee must show: (1) the

employer knew about the employee's disability; (2) the

employee requested accommodation or assistance for his or

her disability: (3) the employer did not make a good faith

effort to assist the employee in seeking accommodation; and

(4) the employee could have been reasonably accommodated

but for the employer's lack of good faith. Taylor, 184 F.3d at

319-320 (emphasis added); Fjellestad v Pizza Hut of

America, 188 F.3d at 952. Cravens v. Blue Cross & Blue

Shield of Kansas City, 214 F.3d at 3 19-320 (3 cir. 2000)

Willis v. Conopco, 108 F.3d 282, 285 (11 Cir. 1997) (per

Curiam)

In addressing each one:

1 The court ruled on July 3, 2003 for purposes of hearing

that Filoso had a disability. Tab | p.20

2 It is well documented that Filoso made several requests for

accommodations prior to the April 26" letter. SEE

ACCCOMMODATION SECTION Issue | 2.A. EEOC

guidelines include protection under the Opposition Clause.

It includes requesting reasonable accommodation for a

disability.

3. Gill's and Fitzgerald's only response to any requested

accommodations after Sept. 2001 was No or no response at

all. They made the decision to place Filoso back at Forest

Park with no input from Filoso. They made the derision to

move Filoso from a room with a window to an inside

classroom with without consulting Filoso,PWEA, or her

doctor. They made the decision to use the same floor wax

that caused Filoso breathing problems the year before. They

never discussed any of these issues with Filoso. Nor did

they discuss options with Filoso about transferring even

though Filoso had indicated to be accommodated she was

willing to do so. Tab 25,9.

Neither Fitzgerald or Gill spoke or consulted with Filoso

after the first week of July. The ADA and EEOC

guidelines specifically state that an interactive process must

be with the employee. Filoso was kept out of the loop by

the Fitzgerald and Gill. Fitzgerald writes Filoso's doctor a

couple of letters not to ask for more info on Filoso's

condition but to tell him their medical opinion on Filoso

from information from the internet. -They also ask the

doctor to be an electrical engineer and provide wiring

specifications. Tab 29. Rather than referring that question to

the appropriate personnel in their building maintenance and

construction departments who would be knowledgeable

about the building design and specifications.

Filoso who is in the best position to know the layout of the

school, rooms that have windows, which cleaning products

caused her respiratory problems is not consulted, not

consulted about alternative room assignment since defendant

chose not to make accommodations at Forest Park.

Gill is knowledgeable about sewer gas a likely problem

for that building on an ongoing basis. Gill freely admits

that sewer gas was an ongoing problem in other school

building, Hylton with the same design as Forest Park ona

regular basis. Tab 33 p. 191.

No one from PW°S ever shared this information with

Filoso, her docts or PWEA. It was not forthcoming until

Filoso's Fact Finé.ag hearing. This information was vital to

any discussion of Filoso remaining in that building and was

not given.Emphasis added It is evident from the fact that

once again in Oct.5 2001 Filoso is notifying defendant of

gas odor again. Tab 34. It is 3 hours after that notification

that Gill officially turns down Filoso's request for a room

with a window. Tab 19. Gill is aware that there will

probably be a worker's comp. issue again. Emphasis

added.

/35

The Court took the Gill's version of the following.

The Court when faced with competing evidence is suppose

to rule with the nonmoving party. A complete contradiction

-- as made concerning Kathy Lanzafama. She is quoted in the

summary judgement court record. Tab | Pagel 5. Filoso

stated in her affidavit that she spoke to science supervisor,

Kathy Lanzafama in Oct. of 2001 prior to a grievance

hearing and Gill at that time had never spoken to Lanzafama.

Tab 35. Filoso is told "you can do earth science any where

and don't they know how hard it is to find good earth

science teacher? Tab 35. Inference can be made those

documents and conversations are being manufactured post

hoc once again and evidence of reasons changing also.

PWCS in an effort to manufacture information post hoc

just committed discrimination. If Gill and Fitzgerald are

stating that they knew that Filoso has to be in a traditional

science room per his "so called" conversation with

Lanzafama. Gill and Fitzgerald is also knowledgeable of

Filoso's and her doctor's request in March and April

2001 for a room with a window. Using defendant's logic

then Filoso can only be accommodated in a science room

with a window. Gill and Fitzgerald with this knowledge

deliberately placed Filoso in a science room without a

window for the 2001-2002 school year. Tab 36. This when

there was an opening at Brentsville that would have

satisfied both requirements. Defendant didn't bother to

explore viable positions that fit this requirement. A

personnel was also aware that Filoso is a certified Middle

School teacher. Filoso could have taught any subject in a

middle school that had a window that would open also.

The Court erred when it didn't view evidence in the light

most favorable to the non-moving party(Filoso). The Court

took the word of Gill that Filoso wasn't doing adequate labs

and that Filoso's students suffered as a result. Filoso's own

affidavit stated specifically that student were doing as many

or more labs than other earth science students. Tab 38 p.

218. The court failed to examine all the evidence

presented. Filoso's evaluation for 2000-2001 was done

over a period of months and based on numerous

observations in Filoso's classes. It is also based on a teacher

effectively fulfilling all aspects of their job description. If

Filoso hadn't been doing labs it would have been reflected on

her evaluation. It was not. Also obvious that Filoso was

doing an effective job is the fact that Gill NEVER once

asked Filoso to move back into the science room. If Gill

had any concerns or reservations that Filoso's students

weren't receiving proper instruction action would have been

taken long before April as Filoso had been in that room for 8

months and school officials were completely satisfied with

Filoso's teaching. Tab 40 p.252-253 Filoso's students

scored higher than school average for the mandatory Va.

SOL tests. Tab 39.218-219. Further proof that her students

were not denied the benefits of proper earth science

instruction. Tab 40.

Gill conveniently left out the fact that it was Filoso who

was concerned about her students education and despite

the fact that she is on leave without pay goes into school

every couple of days in the morning prior to school

beginning to meet with the substitute and drop off lesson

plans, discuss issues, do grading, provide final exam, do

report cards. Tab 45. All this while not receiving any pay

or acknowledgement from Gill or PWCS. For Gill or

Fitzgerald to try and portray Filoso's accommodation

request as being only self-serving is absurd. It is they and

PWCS who has knowingly exposed all occupants of the

building including students and not tell them or their

parents of the sewer gas. It is defendant who has

jeopardized the learning environment with sewer gas.

The court was misled by Ms. McGowan. Tab I p.15There is

evidence of exhaust entering second floor inside rooms that

have no windows in them. Tab 41

‘7?

4. In response to Filoso's March/April 2001 request to a

room with a window that could open Filoso was officially

told No in Oct. 2001. Tab 19. Had Gill been honest and up

front with Filoso about not assigning her to a room with a

window at Forest Park, Filoso could have been transferred

back to Brentsville H.S. Brentsville which had a vacancy in

earth science

for the 2001-2002 school year. Brentsville's science labs

have windows that open, separate HVAC, no sewer gas

issues. no bus exhaust issues. Assigning Filoso to

Brentsville would not have cost the defendant any money

rior would it have violated any policy or cause undue

hardship. EEOC Guidelines Ques. 27.

Defendant at the time that Filoso was placed on

administrative leave did not offer any alternatives.

Filoso at that time could have been a homebound teacher or

as defendant was aware the Virtual High School was coming

on line in 3 months and would be taught via the Internet, not

in a school building. Filoso could have done that job from

home. Earth science was one of the subjects taught on line.

Defendant did not engage in the interactive process with

Filoso. There was no discussion. Filoso was led to believe

that defendant would make the necessary accommodations

at Forest Park for her to teach there, then didn't. Fitzgerald

stated they would comply with doctors requests and didn't.

Tab 12. Then they made independent decisions without input

from Filoso as to were she would be assigned and to what

room while in the same breathe telling her she would be

accommodated there. In reality there was no

accommodation made there for the 2001-2002 school

year. Tab 15.Even the two filters Defendants attempt to

hold up as being an accommodation were not the correct

type of filters to use. Charcoal filters are the correct type

not merely hepa filters. Tab 42 p.184 Had defendant

communicated with Filoso she could have provided the

proper make and model as she had purchased one for her

use already. Despite PWCS having an environmental shop

it is the Personnel director, Fitzgerald purchasing the filters.

Another attempt to deceive Filoso.

It is obvious that Gill and Fitzgerald made no

accommodation and was playing a waiting game. They

figured Filoso would just have to quit or go on leave because

she couldn't tolerate the air quality in her room. Filoso didn't

quit she didn't go out on leave and instead stood her

ground and attempted to work each day asking for the

accommodations they had promised her.

Humphrey v Memorial Hospital . Taylor v Phoenixville

School District, 184 F.3d 296, 316 (3d Cir. 1999)

Barnett v. U.S. Air, Inc. 228 F.3d 1105 (9" circuit 2000)

cert. Granted, 121 S.Ct. 1600 (2001) p. 1116-1117.

The Fourth Circuit in Haulbrook v. Michelin N.

American(No-00-1546) stated "The ADA however, does not

abrogate the general duty of an employee to respond to direct

and reasonable requests of his employer for information and

cooperation regarding potential disabling

condition."... Haulbrook's complete refusal to cooperate with

Michelin's good-faith efforts to determine the nature of his

possibility disability and craft necessary accommodations

was the cause of his termination."

Using the Fourth Circuit's logic in this case it has been

shown that Filoso notified Gill prior to any adverse actions

of issues that were making her ill and not allowing her to do

her job. Defendant had not done the maintenance on the

Filoso provides requested documents from her doctor in

April 2000 and April 2001 that state the nature of her

disability, accommodation requests, and the causes of

Filoso's breathing problem, rash, headache etc. Tab 18, 43.

27. They were directly correlated to her exposures. There

was no mystery as Defendant tried to claim in letter to

Filoso's doctor on July 10". Tab 29 . Both Filoso and her

doctor spelled out exactly what changes in Filoso's work

environment cause the problem.i.e chemical exposures that

did not belong in her work space. Tab 18,43. Filoso tried

every avenue available to her to insure that her students got

the best continuing education and to try and work with

PWCS. Filoso acted in good faith.

It has been shown that PWCS either didn't respond, only

response was No, misled, stalled ,documents have been

manufactured post hoc, or flat out refusal to

accommodate. Gill and Fitzgerald engaged in a shell

game in which they try to pass it off as the letter wasn't

addressed to me, it was addressed to Gill or Fitzgerald or

vice versa. Or that it wasn't my decision it was his

despite Fitzgerald having stated contact him. Tab 10. It is

clear from the evidence that PWCS does not have a

policy on the ADA. Fitzgerald stated that 80 different

principals get to make independent decisions without

input from his office as 504 Compliance Officer. And

when Fitgerald's office does make comment it's in the

form of derision remarks. It is also clear that PWCS does

not have adequate policy concerning the ADA. Fitzgerald

states they have over 7000 employees but does not have a

ADA log or require information to be passed on to

Personnel so that it can be maintained in some way to

make sure compliance is met. It is also clear that

Fitzgerald when faced with a somewhat unusual

disability uses the Internet for information and not

health professionals. It is also clear that there is not even

a semblance of a time frame in which to respond to

employees about requested accommodations. Defendant

fails to communicate with the employee and engages in a

game of semantics. Documentation in PWCS consists of

scribbled notes that are placed in personnel files without

the employees knowledge or opportunity to place their

own letter in response. This despite it violating PWCS

policy. Employees are given no guidance from ADA or

dé

504 Compliance Officers as to the ACT and their

responsibilities. There is no monitoring or follow-up to

see if accommodations have been met or are working.

There is no discussion of alternatives when requested

accommodation is denied. The lack of policy, the

complete bungling of requests information, the shell

game, long time delays in responding or in this case just

leaving Filoso dangling, and failure to interact with

Filoso to get her input all show that defendant did not act

in good faith. Tab 56 p. 112-114.

Il. Absenteeism

Filoso 1999-2000 absences

Filoso had no attendance issue prior to PWCS

containmenating her work environment with irritants

and hazardous substances. This is evidenced by Filoso

being an employee for six years prior to any attendance

issue. Filoso began reporting illness from exposures

occurring due to renovation work being conducted during

school hours in April 2000 including an ER visit. It was only

after Prince William County Health Department made

significant recommendations due not only to Filoso's

complaints but other as well that any attempts were made to

reduce employee exposure. Even those recommendations

were not implemented correctly as evidenced by Prince

William County Health Department follow- up visits and

additional correspondence. Tab 2 Filoso was entitled to

worker's compensation due to the accident/injury from

such exposures. Defendant never filed a First Accident

Report as required by Va. Code 40.1-51.1 letter B for

either school.

Filoso was transferred over her objections from

Brentsville H.S. for the 2000-2001 school year. Renovation

work was scheduled to be completed prior to teachers

returning to work in Aug. 2000. Defendant NEVER

discussed options with Filoso. She was just told she was

being transferred. "That she couldn't be trusted not to get

sick in the building." Tab 44

Filoso 2000-2001 absences

Gill had knowledge beginning in Oct. 2000 of Filoso

experiencing illness from the odors other than wax.

Filoso's doctor removed her in May 2001 from Forest Park

until sewer gas could be corrected. Tab 43. Filoso went by

the school in May and June 2001 every other day to

speak with her sub and drop off lesson plans. During this

time Filoso made inquires about sewer gas odors and never

received a response to her inquires. Filoso continued to do

lesson plans, tests, grades, etc. despite being on leave

without pay at that time. Tab 45 Defendant never called or

spoke to Filoso or her doctor about the sewer gas.

Gill did not try to engage in communication with Filoso

about the sewer gas problem, steps they were taking to try

and eliminate it, her possible return to teaching for the

remainder of the year despite her coming to school on a

regular basis and inquiring. Tab 45.

Gill had knowledge beginning in Aug. 2000 of the need for

clean air supply (free of known irritants and toxic

substances). Tab 46.

Defendant under CFR 35.133 is required to do

maintenance on equipment necessary for a person with a

disability to do their job. Emphasis added.

In this case the equipment was the

Heating/Ventilation/Air Conditioning (HVAC) system.

Seven months to correct the problem of sewer gas entering

the system is incredicilous. Gill failed to even attempt to

adequately address this problem until Filoso filed her

Accident Report. Gill repeatedly failed to call in proper

experts in a timely manner to correct the problem which

had another source in addition to dried up drains. Tab 47.

Gill engaged in a game of semantics when Gill stated "no

one approached me on that in relation to irritation from

sewer gas, other than odor. This directly contradicts

information that if you can smell it you're already at the

limits, which will cause symptoms. Tab 4. Gill's statement

is contradicted by the conversation that Filoso had with

the school nurse. Tab 32 and the subsequent e-mail she

sent out about a program on air quality in schools given

to her by a considered parent. Tab 32

Gill in May 2001 also received a letter from VOSHA about

the sewer gas and the need to take immediate corrective

action. Gill and PWCS cannot claim ignorance of health

effects after such a letter. Tab 48. Adequately addressing

the sewer gas issue was not only an issue for Filoso's

disability but one required by law. Virginia Code.

Filoso's absences in April, May and June directly

correlated to her exposures to sewer gas in April and

May 2001.

Filoso was entitled to Worker's Comp. as well as FMLA

during this time period. Filoso was also entitled to a leave of

absence due to her disability under the ADA. Filoso' doctor

removed her from the building until Defendant could correct

the sewer gas problem. EEOC Accommodation and Undue

Hardship question #19.

When PWCS failed to fill a First Accident Report as

required by Virginia Code Filoso herself filed the accident

report. Tab 49 Gill is aware of this Accident Report and

knew that Filoso was entitled to time off from work due

to her accident/injury as allowed by Virginia Code when

an employee experiences accident or injury. Gill as her

principal had signed off on the report.

An attempt was made to discourage Filoso from opening the

window in her room. Tab 17. This despite the fact that this

was the reason that Filoso had been reassigned to this room

in Sept. 2000. Gill stated he had knowledge that various

teachers in several of your classrooms would open the

window to kind of relieve the smell. Tab 50(245) This also

despite the fact that a toxic gas is entering Filoso's room via

the school's HVAC system and Filoso was asking for

corrective measures to be taken to stop it. Filoso when left

with no other choice but to again asked to be disconnected

from HVAC for a second time due to gas and this time was

Giles v United Air Lines, 95 F. 3d . Jackson v Sweet ideas,

Itd_ partnership

Filoso's attendance was not an issue with PWCS until after

repeated exposures to sewer gas in her workspace. Evidence

of this is F:taso's effective evaluation for the 2000-2001

school year that indicated complete satisfaction with

Filoso's job performance. The evaluation is signed off on

May 1, 2001 after Fitzgerald's letter on April 26"

2001.School officials were completely aware of Filoso's

illness from the sewer gas when evaluation was completed.

The Court made significant comments at the summary

judgement decision about lab setting and it being a math

room. Tab | p.10-Filoso specifically addressed labs in her

affidavit. Filoso's students did as many or more labs then any

other earth science student in the building. Filoso's students

scored higher on VA. SOL tests than Forest Park

average. Tab 40. The reason Filoso had flat topped desks put

in that room was so that her students could do labs. Filoso

is NEVER asked during the entire 2000-2001 school year

to move back into the science room as _ 1. Gill is aware of

sewer gas problem in the building, 2. Filoso's students are

doing labs 3. Observations and evaluations made by Filoso's

supervisor Carolyn Custard are completely satisfactory. Gill

never monitored Filoso to find out if room with a window

was effective. It was Filoso, herself who kept reporting air

quality issues and receiving either No for an answer or no

answer at all.

The court stated Filoso could not be accommodated

because simply wasn't coming to work.

Filoso 2001-2002 school year

Filoso disagrees. For the 2001-2002 school year Filoso was

placed at Forest Park with no accommodations other than her

own charcoal air filter. Filoso was placed back in a room that

never worked the previous year because it is a standard

classroom as Fitzgerald demanded she teach in in his April

26" letter. The room had no window that opened or separate

HVAC. Defendants knew this. Defendant is already on

record stating that a room with a window didn't work the

year before at Forest Park. Although the statement is not

accurate prior to April's sewer gas problem, it does not

make sense then for Defendant to believe that a room

without a window would be an effective accommodation

in it's place.

The court was in error when it stated that Filoso simply

wasn't coming to work. Tab 1 p.20.

Filoso disagrees. Despite this nonaccommodation Filoso

made a "good faith" effort to make this room work while

continuing to ask for proper accommodation. Filoso brought

in her own charcoal filter and even purchased a charcoal

filter for the ceiling unit.

This was still inadequate and Filoso got ill each day and had

to leave early.

Filoso did come to work each day except for 3 days

during this time period. Provided all the lesson plans,

tests, grading etc. necessary.

Defendant simply hadn't provided accommodations that

would have allowed Filoso to work a full day.

Under the ADA leave of absence is a reasonable

accommodation. Filoso was on a leave of absence in

May/June of 2001 due to the defendant failing to provide

Filoso a Safe and healthy work environment as required by

Va. Code. In addition Defendant violated their own

policy/reg. 561.02-1 #10. Employees will not be expected

to work in hazardous conditions for themselves or their

students. Fitzgerald's letter of April 26, 2001 demanded

just this. Tab 10

He later stated at the fact finding hearing that he had no

knowledge of the sewer gas issue or chemical exposures at

Brentsville the year before at the time the letter was written

about Filoso's attendance and accommodation requests. He

also stated that he had no knowledge of the letters from

Filoso's doctor on April 2000 and April 2001. Tab 51 p.108

Fitzgerald's statements are not true. He specifically

mentioned the two letters from Filoso's doctors in his April

26" letter. Tab 10 and was sent and e-mail from Principal

Mulgrew in May about Filoso's absences from construction

materials and asking for guidance on it being a disability and

504 issue. Tab 6.

Fitzgerald had full knowledge of Filoso's doctors and

hers requests for accommodation prior to the letter being

written. They specifically state what is causing Filoso's

breathing problems. When questioned about the letter

dé

Fitzgerald also states that he doesn't see the word disability

in the letters. Tab 52 p.111. Something as 504 Compliance

Officer he would know. EEOC Guidance ques.#1 employee

may use plain English, doesn't have to use ADA or

"reasonable accommodation."

Filoso was told in this April 26" letter not to make additional

accommodation requests. Filoso in asking to be

disconnected from the HVAC not only considered her

health but also the health of her students in her room by

such a request.

Filoso's absences were completely predictable as they

occurred when Gili failed to correct the problem of sewer

gas in her workspace. Filoso had begun asking for this

problem to be solved in Oct. 2000 and it was the factor in

April/May that caused Filoso's doctor to remove her from the

building until problem could be corrected. Tab 43.

Filoso's attendance was never an issue when

hazardous/toxic substances were kept out of her work

environment. Emphasis added

U.S.C. 12113(a)

Gill at Fact Finding Hearing stated that Filoso was

terminated for her unprofessional conduct of excessive

absences. Filoso's absences clearly fall under worker's comp.

claim in April 2000, and April 2001 as such are protected

from discipline actions because of Virginia Code 40.1027.1,

FMLA 29 C.F.R. 825.602 (a)(b) for instructional

employees, as well as the ADA. Filoso's absences for fall

2001 are clearly a direct result of nonaccommodation for

Filoso.

The text of the ADA authorizes discharges for misconduct or

inadequate performances that may be caused by a

"disability" in only one category of cases-alcoholism and

illegal drug use

42 U.S.C. & 12114(c)(4).

Humphrey v Memorial Hospital FN18 (8)(9)

Filoso comes to school and gets ill as a result of

nonaccommodation in 2001-2002. Holding Filoso

accountable for missed time due to illness from

nonaccommodation in her actual work space once she is

there equates to terminating Filoso directly for her

disability. Emphasis added.

Filoso was not given reasonable accommodation when

defendant placed Filoso on administrative leave and

proceeded to terminate based on Filoso's attendance

when she is not accommodated in her work environment.

When you take away any absences of Filoso's when she

was properly accommodated by keeping irritants/toxic

substances out of her environment on the job there is no

attendance issue. Such gases do not belong in a school

environment in the first place.

Despears v Milwaulkee County,63 F. 3d 635 (7" Cir. 1995).

Issue #2 On Appeal

‘2. Whether Filoso has presented evidence for a prima facie

case for retaliation. Filoso asks the Court to vacate summary

judgement for Appelle and remand for trial.

Il. Retaliation

Filoso asks the court to consider direct and circumstantial

evidence to prove retaliatory animus

Shaner v Synthes, 204 F.3d 494, 501(3™ Cir. 2000) 42

U.S.C. & 12203(a) (2002), retailation claims under the ADA

are analyzed under the same framework as Title VII

discrimination claims.

Filoso also asks the court to consider direct evidence and

mixed motive. Desert Palace, Inc. v. Costa, No.02-679 (June

2003) U.S. Supreme Court, Fabela v Socorro Independent

School District, No. 02-50138, (Fifth Circuit Appeals 2003)

If. To establish a prima facie case for retaliation it is

necessary to prove the following:

|. That individual engaged in protected activity.

That employer took adverse action against him

Causal retaliationship between protected activity and

adverse employment action. Haulbrook v Michelin N.

Am (00-1546) 4th circuit

we N

Due to the nature of the events and actions Filoso will

provide the necessary information in the following format:

A. Will be the protected activity

B Will be the adverse action

C. Will be the causal relationship between protected

activity and adverse employment action.

1.A. Filoso asked for numerous accommodations in April

2000. They included switching to another room, asking to be

allowed to teach outside, for Adminstration to take necessary

steps to prevent exposures. Filoso asked to be placed on

administrative leave to get her out of the building when there

was no safe place in the building due to the expansive

project. Tab 5.

Filoso asked to be transferred to another building for

duration of school year. Denied at first. After Filoso became

so sick that it took very little exposure to anything to cause

illness during that time period Filoso is placed at Godwin |

and becomes ill the first day as she had before in the moldy |

trailer. Filoso is only observing that day and is not paid by

PWCS. Filoso does not go back based on her experience of

having to go to the ER when the same thing happened at

Brentsville. Filoso sought medical treatment as her blood

pressure was a problem as it had been in the moldy trailer.

Godwin's classroom did not have a window.

1.B.In 1998-2000 PWCS knowingly continued to expose

building occupants including Filoso to

construction/renovation materials during school hours at

Brentsville High School. In April 2000 The Prince

William County Health jepartment was called in by the

school nurse because of employees complaining of adverse

reactions including Filoso to such materials. Tab 2

Filoso asks for accommodations due to her illness at

Brentsville. Due to failure of PWCS to act in a timely

fashion to exposure complaints and tc take necessary

steps to ensure the safety of building occupants Filoso

becomes ill. Tab 2 shows the continued requests of Prince

William County Health Dept. throughout the month of April.

Filoso's disability of breathing difficulty, rash and

headache develops due to chemical/gas exposures at

Brentsville.

Principal Mulgrew nor PWCS file a First Accident

Report on Filoso as required by Virginia Code 40.1-51.1.

Filoso is never told to file worker's compensation claim as

a result.

1.C. Filoso is involuntarily transfered in June 2000 after

Filoso asks to be accommodated due to illness from

chemical exposures.

Filoso was involuntarily transferred from Brentsville H.S.

Filoso objected and was transferred anyway.

Construction/renovation was due to be completed prior to

teachers returning for the 2000-2001 school year. As such

Filoso would not have been exposed to renovation materials

at Brentsville. Filoso also would have had a wall full of

windows and a separate HVAC system in that building.

Filoso was told by her principal "she couldn't be trusted

not to get sick in the building." Filoso reported this

comment at Personnel to Renee Campbell. Her response was

| hope he phrased it differently. To which Filoso responded

"No he didn't." Tab 44 p.154. Filoso is transferred anyway to

Forest Park.

Filoso's absences due to illness/disability due to continued

exposures that year is sited in Fitzgerald's April 26" letter

of reprimand. Tab 10

Issue # 2 of Retaliation

2.A. At Forest Park H.S. for the 2000-2001 school year the

school had just finessed waxing all the hallway floors over

weekends preceding employees returning to the building.

The floor wax caused such breathing difficulties with Filoso

that she asked to switch rooms to a room with a window.

Filoso was allowed to switch rooms. The building

experienced toxic sewer gas beginning in October 2000.

Filoso reported the smell and illness and when gas still an

issue asked to be disconnected from the HVAC system as

the gas smell was circulated through the sy: +m.

Defendant's response was "we have gone over, oard in

accommodating this lady " and they never responded to

Filoso. Tab 54

Filoso notified her administrator Carolyn Custard of bus

exhaust coming into the school building in cold months cf

Jan/Feb. 2001. Schools response was there was nothing

they could do about it despite reasonable suggestions

from Filoso.

Court stated it would be unreasonable to reroute buses

etc. Tab 1 p.22. However, the common sense things such as

shutting off engines when loading and unloading. Not to

have buses idling rear the school. To close doors and not

leave them propped open, all of which Gill failed to do,

these are things are now required by LAW in California.

There is no evidence that PWCS ever investigated the air

quality to access containmentation levels from the bus

exhaust. April 17,2001 the second floor of the building

where Filoso's room is located experiences major sewer

gas odors. Filoso notifies dept. chair, building engineer,

administrators, principals that sewer gas is making her sick

and causing such health problems that she has to go home.

Tabs 55,39. In addition each time Filoso has to leave the

building she has to notify AP Custard of her illness and

needing to leave.

EEOC Guidance ques.# 14 tells "employees to notify

employers of work place barriers that is preventing

employee of doing job". Filoso does this numerous times in

regards to sewer gas SEE ACCOMMODATION SECTION

prior to April 26" letter.

When defendant fails to correct the problem by April a

Filoso asks again to be disconnected from the HVAC

system. Defendant responds on April 30" NO. Tab 17,

2.B. Defendant for the second year, 2000-2001 has

"materially changed" the conditions of Filoso's

employment. Tab 54,55 "Increased exposure to pathogens

could adversely affect conditions or benefits of

employment. Allen V Rumsfield, No. AW-01-2501, U.S.

District Court for District of Maryland, 2003.

..."exposed her to dangerous pathogens and subjecting

her to less appealing working conditions." Von Gunten V

Maryland, No. 00-1058,(4"" Cir. Appeals, 2001)

Defendants own documents of Air Quality report, letter to

VOSHA, and Gill testimony all state that sewer gas in

Filoso's work place beginning in Oct and continuing

‘hroughout the winter and spring and particularly April.

2.C. Filoso received April 26" letter Tab 10 after asking

for additional accommodation due to sewer gas in her

workspace. Letter specifically mentions requests to be

disconnected from HVAC. Fitzgerald also cites Filoso not be

in a standard lab classroom. No one from PWCS ever

talked with Filoso to find out the types of labs that her

students were doing or to find out if there were any

barriers that prevented her from fulfilling her job as an

Earth science teacher. Fitzgerald then proceeds to make

unsubstantiated statements about her student's lab

experiences. Circumstances of the letter and contradictions

have already been discussed in accommodation section.

Filoso clearly engaged in protective activity under the

Opposition Clause prior to the April 26" letter. EEOC

Compliance Manual on Retaliation B.2, B.3b.

Fitzgerald responded to Filoso's accommodation request

in April as it being "incredulous". Tab 10. This response is

clearly a reprimand for Filoso requesting a reasonable

accommodation under the circumstances.

Filoso is being reprimanded and told not to make additional

requests. Tab 10. EEOC Compliance Manual D.1. She is also

told to seek medical attention so that she can work in their

"standard workplace." Again indicating their

unwillingness to make any accommodations. In the case of

Forest Park their "standard workplace" means the ability to

work in an environment with toxic sewer gas.

Filoso suffers another adverse employment by Defendant

exposing her and not informing her she is being exposed

to sewer gas and insisting that she work in such an

environment. Filoso is reprimanded in the April 26" letter.

The letter, which directly states she has asked for

accommodations and refers to her doctor letters which

indicate the need for accommodations. Letter specifically

scolds Filoso for taking sick leave due to illness from the

exposures. Letter is placed in her personnel file and then

referred to in Gill's Sept. 18,2001 letter, Tab 78 and used

as evidence to terminate Filoso. This despite the fact that

Filoso and Caudill meet with Fitzgerald on May 10" and

completely fill him in on circumstances of absences and

their relationship to sewer gas and the fact that Filoso

has a disability.

Filoso had also filed a First Accident Report under the Code

of Virginia because of accident/injury due to toxic sewer gas

exposures especially during the month of April 2001.Tab 55

PWCS once again did not file it. Filoso has to.

It is clear that Fitzgerald is trying to conceal his knowledge

of the protective activity of asking for accommodations

when he is questioned about the April 26" letter at the fact-

finding hearing. Fitzgerald tries to backpedal and state

that he is just acting on the attendance issue and has no

knowledge of any other issues. Tab 56 p. 112, 150. Gill at

Forest Park had direct knowledge of Filoso's getting ill and

missing work due to sewer gas as Filoso had properly

notified her administrator on numerous occasions of this

prior to the April 26" letter. Attempts to conceal the fact

that the protected action was known at the time of the

adverse action. Fitzgerald had received an e-mail for

Principal Mulgrew that directly asked for guidance due

to Filoso being ill from construction. Tab 6. Can support

an inference of a retaliatory motive. Schlei and P.

Grossman, Employment Discrimination Law, 558-559 (2d

Ed. 1983).

Third Issue of Retaliation

3.A. Filoso asks to be allowed to teach in a room with a

window for the following year in March/April 2001. Tab 18

No answer is given Filoso in either granting or denying

that requests. Due to the severe breathing difficulties, rash

and headaches that Filoso suffered from the sewer gas in

April/May Filoso and her doctor make a additional requests

in addition to the window. Tab 27. Filoso and Caudill meet

with Fitzgerald in May and early July. Filoso provides the

requested documentation to Fitzgerald as to her disability

and accommodation requests.

3.B. PWCS while Filoso was out on leave without pay was

working behind the scenes. There is an e-mail where Becky

Irvin is already trying to figure out how to defend against

the worker's comp. claim for the sewer gas. Tab 57. Gill

and PWCS is also investigating to find out who made the

VOSHA complaint. Filoso had made a confidential

complaint to VOSHA about the toxic sewer gas in April

2001. Defendant despite being told not to do so made

inquires and wrote Filoso's name across the top of the

letter from VOSHA and faxed it from Forest Park to

personnel. Tab 2. Gill at the Fact Finding Hearing states

he didn't try to find out who complained to VOSHA yet

Fitzgerald is e-mailing about needing to work with the

teacher who made the complaint. Tab 58.

Aug 2001

"Document everything."""Get her in for "the" planning

conference," the second day of work. Not, you need to

discuss these issues with Filoso to find out what

accommodations she needs, how can we help her, or what is

causing a problem but "get her in for the planning

conference and get her started on an action plan". Tab

60. This comment is made the second day back at work

when Filoso hasn't missed any time.

Kept secret records Tab 46. e-mails on me in my personnel

file. Supervised me more than any other employee. Kept

daily running log on me. Tab 61. EEOC higher level of

scrutiny.

”

Waited until I returned from summer vacation to assign me

to an impossible situation and then document my every

move. Wells v. Colorado Dept. of Transportation.,

__F.3d__, 2003 WI 1901278 (10" Cir. 2003). Id.

Richardson v. New York State Dept. of Correctional Service

, 180 F.3d 426, (2" Cir. 1999)

Filoso was on unpaid leave a month and a half and then

summer vacation for a period of almost 4 months. It was

when Filoso returned to work that she found that PWCS

had began retaliating for a third time against her. First

Gill assigned her to a room with no window. Tab 62. This

took away the window accommodation she had been

allowed the year before. Second they did not provide her

with a separate HVAC system since it would be an inside

room. By assigning her to such a room she is unable to do

her job. The room without a window had never worked

the year before. Filoso had that room the year before and

had to ask to be assigned to a room with a window.

Defendant had full knowledge of that and reassigned her

back there anyway. If that room had been an effective

accommodation Filoso wouldn't have had to ask to be

moved. Emphasis added.

"transferring an employee into a job that the company

knew she could not perform after the employee

registered complaint for sexual harassment may

constitute illegal retaliatory conduct even though there

was no reduction in her pay or benefits."" Dilem v

Goodwill industries of MidEastern Pennsylvania,(3" Cir.

Appeals)

Fitzgerald stated that he had knowledge that the room

Filoso was being assigned to had no window. Third they

used the same floor wax that had made her sick the Aug.

prior in 2000. Tab 62 Fourth Gill and Fitzgerald refused to

give Filoso or PWEA an official answer to repeated

request for a room with a window until Oct.Sth, six

weeks after school started, defendant would never directly

answer the question. This despite Defendants statement that

they would comply with accommodations in last doctor

letter. Tab 12.

Failure to take immediate action to adverse conditions.

Allen v Rumsfield, No.AW-01-2501.

No other employee is so closely supervised. Mead v U.S.

Fidelity & Guaranty Co. 18 FEP Cases 140, 154 (D. Minn.

1977) Defendant on Filoso's second day back states get her

started on "the" planning conference when Filoso cannot

attend a meeting due to no accommodation in that room.

Not an action plan but "the" conference. No discussion of

alternatives or trying to get input from Filoso on finding a

solution.

Gill waited until Filoso returned from leave to start

documenting her daily actions.

This violated PWCS own policy of notifying employee when

documents were being placed in her personnel file.

Defendant had been doing this without her knowledge since

year before in Sept. 2000.

Principal Gill, Personnel Director and 504 Compliance

Oificer Fitzgerald and Secondary Personnel Director

Renee Campbell all engage in running internal e-mail

dialogue. These are the individuals who are Filoso's

supervisor and decision-makers in Personnel issues. The

remarks they make are derision in nature towards Filoso's

disability and her continued requests for accommodation.

These remarks will be shown in the timeline and context in

which they are being made. No where in any of the

documents is there "guidance" given by Fitzgerald as the

504 Compliance Officer. He joins in the remarking making

and repeating of statements as one of the "boys".

5-2001 Filoso compared to "Bubble Boy" Tab 63 p.414

8-1 7Rick didn't make any such promises,"Let the games

begin" Tab 64

8-18 School will comply with last Dr. letter except for

HVAC and that is pending Tab 12

8-18 Work at home as no accommodations made-ready to

call EEOC Justice Dept. Tab 65

8-26 Fitzgerald writes deceptive letter to Filoso's doctor to

Dr. Smith Tab 66

8-27 Gill to Gill discussion with Filoso Tab 67

8-27 Gill to Fitzgerald,Report getting sick, went to

classroom-"see how long that last" Tab 68

8-27 "Oh yea"! "We have decided to name the Book

Filoso's Follies, she likes the alliteration" "Get her in for

"the" planning conference. Tab 60

8-28 Filoso will start pursuing Fed. And State recourse Tab

8-29 Authorization from PWEA for Filoso to meet with

attorney Tab 69

9-5 "Land of Mystery Fumes". Tab 73

9-7 Filoso tells Gill she is meeting with PWEA and their

attorney about the situation that it's not fair to anyone.

Filoso made request of Gill for a window, comment “he

didn't think it would work" Tab 74

9-10 Filoso speaks to Gill about meeting with attorney and

PWEA making one more request on her behalf for a window.

Tab

9-10"PWEA will do anything to appease their members"

Tab 75

9-13 Doctor Smith writes a letter indicating necessity of a

room with a window and discusses cleaning products again

Tab 72

9-17 memo about open house and not to mention "POOR

VENTILATION" Tab 77

9-19 Filoso receives letters about attendance and "bona fide

illness". Tab 78

Gill states he was aware of Filoso's doctor's Sept. 13 letter

stating accommodations needed include a window again

when he wrote this letter. Tab 56 p. 275.

rie

9-21 Begins informal notification of grievance in response to

Sept. 18 letter. Tab 79

9-25 Second grievance notification for nonaccommodation.

Tab 80

9-25 about PWEA making a plea for a switch..." Doing

two-step" ready to pull the plug on her" Tab 8]

9-27 convince her that she should not Stay and absence

will be reflected on her evaluation...another nail in her

coffin Tab 82

9-27 doctor's note had ventilated area checked a new look

Tab 83

10-5 Filoso reports gas smell in building Tab34

**10-5 Filoso officially told No to room with a window.

Tab 19 This 3 hours after Filoso is telling them about

sewer gas in building FOR SECOND YEAR. Tab 34

10-10 Notice of grievance for not providing an

accommodations. Tab 83

10-16 Grievance filed Tab 84

10-17 Placed on Administrative leave.

10-31 Gill now states for first time us that Filoso does not

have a disability, (six months after Filoso specifically

used that word). Tab 86

Gill was clearly on notice that Filoso was seeking legal

advice and would in all probably be filing grievances if she

iS not given an answer to the accommodation request or

accommodations. It would have been premature to file

grievance until we got an official response to our request on

Sept.10". Once Gill sent the Sept. 18" letter a grievance was

immediately filed. Gill never did reply to request until

Oct. 5", Again several weeks after request made. Gill's

reply to Grievance letter on Oct. 16 is on Oct. 31" for the

first time that Filoso has no disability.

Gill in his reply Tab 86 states he doesn't give Filoso a

window because she had ee the year before and her

attendance was still unacceable. The room with a window

did work until April 17'" wher the room and the rest of the

second floor experienced major sewer gas problems. Sewer

gas is toxic and by law must be kept out of an employees

workplace. Tab 3. The sewer gas caused significant

breathing difficulties, rashes and headaches in Filoso which

correlate with her disability. By using Filoso's absences in

response to toxic sewer gas causing her breathing

difficulties, Gill is using her disability and worker's

compensation claim as a justification not to provide her

with an accommodation for the 2001-2002 school year.

Gill is retaliating against Filoso because he knows sewer gas

is in the building again for the second year and will probably

be an issue and is trying to get rid of her by not providing

any accommodations that will allow her to job.

Filoso is in the best position to know of factors in her

workplace environment that are causing her difficulty

with her disability. Defendant never sends Filoso a copy

of any correspondence with her doctor. Defendant never

asks for any input from Filoso concerning room

assignment, or building assignment. Gill and Fitzgerald

completely ignore Filoso's requests or attempts to

communicate issues and instead ridicule and mock as

evident by preceding timeline.

Shirley v. Chrysler First, Inc. 970, F.2d 39,42 (5"" cir. 1992)

Here again the fact that the staff is now ignoring Jane Doe

or, in the case of one supervisor, treating her with hostility to

demonstrates retaliation. Kells v Sinclair Buick-GMC Truck,

Inc., No. 99-2795, (Eight Circuit of Appeals, 2000

Fourth Issue of Retaliation

4.A. Aug-Sept 2001 Filoso had continued to ask for a room

with a window and for hers and her doctor's accommodation

requests to be met. Caudill is also asking for

accommodations on Filoso's behalf.

4.B. Prior to letter date Sept. 18" about attendance.

Filoso is denied the requested accommodations for the 2001 -

2002 school year. Tab 15.

4.C. Filoso receives Gill's Sept. 18,2001 letter stating that if

she misses one more day without a doctor's note she will be

recommended for termination. Filoso complies with doctor

notes with work restricted box clearly checked additional

ventilation in addition Filoso had brought in another letter

from her doctor dated Sept.13 clearly stated the need for a

window once again. Filoso is placed on administrative leave

anyway pending termination proceedings. Tab 78. Gill states

in Sept. 18'" letter that he wrote April 26" letter. Tab 10.

This is completely inaccurate as Fitzgerald wrote the letter.

5. Filoso is terminated on July 25, 2002.

As in Kells v Sinclair Buick-GMC Truck, Inc. No. 94-2795

(8"" Cir. Appeals, 2000)

"If it is accepted that the PWCS and its employees conducted

itself with a disregard for its obligations to Filoso under

federal disability laws, this is relevant evidence of the

Defendant's attitude towards Filoso's disability."

A reasonable jury could find that defendant viewed with

derision Filoso's request for reasonable accommodation and

from that infer that Defendant's reason for transferring and

discharging Filoso were also related to contempt towards her

disability. Failing to provide a Filoso with reasonable

accommodations can tend to prove that the PWCS also acted

adversely against the Filoso because of her disability.

Viewed in the light most favorable to Filoso, it can be

summarized as follows: iasensitive comments by

supervisors, repeated denials of reasonable

accommodations requests, failure to communicate with

Filoso, failure to consider with Filoso alternative

positions, contradictory Statements made by supervisors,

attempts at concealment, and inferences that information

has been manufactured post-hoc to support a non-

discriminatory explanation for Filoso's termination.

Gill and Fitzgerald used a waiting game in the Fall of 2001

in the hopes that Filoso would just get so sick that she would

have to go out on leave. When Filoso instead kept showing

up each day and asking for the accommodations that told her

they would make they waited until there was enough partial

days of work that they could try and use against her to justify

their wanting to get rid of her because of her disability.

The Court stated that ...the plaintiff was on notice from

April 26, 2001, which is several months before she filed her

formal complaint about a potential ADA violation, that her

absenteeism was unacceptable and had to be corrected, and

then on September 18, 2001, so several months later, there's

a second letter, and that predates again her complaint. It

references the April 26 causally connected together.

Requests for Oral Argument

Filoso would request oral arguments for this case. As you

can see it is fact intensive and also has a number of laws and

cases that support Filoso's position. Filoso is in the best

position to adequately address any questions of fact of law

that apply to her case. From the limited access to research as

a pro se individual that | have been able to do, it appears that

the Fourth Circuit of Appeals has never really addressed an

employers duty in the interactive process, it has addressed an

employee's in Haulbrook v Michelin N American (No.-00-

1546). It also has not addressed attendance issues that are a

result of the employers failure to provide a safe and healthy

work environment which lead to termination. The case of

Allen v Rumsfeld, No. AW-01-2501, U.S. District Court of

Maryland 2003 and Von Gunten v Maryland, (No. 00-1058,

4’)

(4° Cir Appeals, 2001) although they cited material

conditions and exposure to dangerous pathogens they did not

decide the case on these issues. For these reasons I believe

oral argument is a reasonable request.

APPENDIX D

In The

United States Court of Appeals

For the Fourth Circuit

Record No. 03-1943

Phyllis Filoso Appellant, (Pro Se)

Prince William County School Board

Appellee

Response to Appellee Brief

Phyllis Filoso Mary McGowan, ESQ

212 Foresail Cove Jennifer Porter, ESQ

Stafford, Virginia 22554 Sicilliano, Ellis, Dyer

540 659 1215 Boccarosse

Pro Se 10521 Judicial Drive,

Suite 300

Fairfax, Virginia

22030

703 385 6692

Counsel for Appellee

Filoso (Appellant)contends that the Court erred when it

granted summary judgment to Prince William County

School Board(PWCS) Appellee. Filoso also states that

there are numerous points of law under the ADA and 504

Rehabilitation Act as weti as court case precedent that

indicates that summary judgement was inappropiate and

should not have been granted.

Filoso does not state that she has a disability based on IEI

or MCS. Filoso states that she has a disability based on her

breathing difficulties when exposed to a wide variety of

chemicals. The chemicals are typically found in places of

work, stores, churches, homes. Filoso even when not

exposed continues to suffer from the effects of exposures

in the form of extreme fatigue and "flu like" achiness.

These are markedly increased with exposures for several

days following such exposures. Filoso also has rashes,

headaches, and difficultly concentrating with exposures.

Filoso points out that although she does not claim IE] or

MCS as her disability that under the ADA the name of the

disability is irrelevant. It is the effect it has on the

individual's major life functions that must be considered on

a case by case basis under the ADA. In Filoso's case her

disability of breathing difficulties affects her ability

breathe, work, do basic household cleaning/maintence.

shop, attend church, and participate in most normal social

activities.

Also noted is that Filoso would have prevailed at summary

judgement on Daubert issue as Dr. Smith is and has been

Filoso's treating physician for over seven years.

Issue I in response to PWCS brief

—————=—=££££_£_£_£__

PWCS does not state the facts concerning Filoso's

attendance correctly. PWCS continues to state that

"Filoso's absences cluster around weekends and

holidays". The attendance chart that PWCS has

provided does not bear this out. Filoso's rigorously

objects to the grossly mischaracterization of

attendance. Filoso's absences directly correspond to

significant exposure to hazardous and toxic gases

from renovation in her school building at Brentsville

2000 and toxic sewer gas at Forest Park in 2000-2001.

There is no correlation to "clustering around long

weekends and holidays. PWCS uses every Fri. and Mon.

when Filoso is out altogether for injury/accident to

calculate so called "statistics".

PWCS does not deny she was exposed to these

substances. PWCS also admits that these exposures

occurred over long periods of time with significant

exposure occurring in the month of April/May in 2000

and 2001 respectively. Von Gunten v Maryland, (No. 00-

1058, (4" Cir. Appeals 2001), Allen v Rumsfeld, (No. AW-

01-2501, U.S. District Court of Maryland.

This is also born out in the letters from the Prince William

Health Department in April 2000, Virginia OSHA

inspections and from PWCS own air quality report done in

May and June 2001.

Accommodations At Brentsville High School (1999-2000)

PWCS does not deny that renovation work was conducted

during the school day while Filoso was there. Virginia

OSHA collected a number of MSDS that show toxic and

hazardous products in use. PWCS does not deny that these

products were in use during the school day. Prince William

Health Department(PWHD) was called by the school

nurse(their employee) because of numerous complaints of

illness due to renovation work. PWCS does not deny that

they did no testing or investigation of these complaints.

These products are known respiratory irritants.

Filoso agrees that she was moved within the building several

times by PWCS. What PWCS doesn't state to the court is

that the issues of chemical exposures and dust continued

because (1) PWCS failed to follow established industry

standard of good practice to prevent occupants from

such exposures and (2) even when informed by other

employees as well as Filoso of illness from such, PWCS

failed to adequately follow Prince William County Health

Department (PWHD) or Virginia OSHA's

recommendations to reduce such exposures. As evidenced

by inadequacies noted on repeat inspections by PWHD.

Keeping Filoso in such an environment was completely

ineffective. When Filoso asked about being placed in one of

the trailers at the school to remove her from the building she

had no idea that the trailer was so infected with mold

that she would have to be rushed to the emergency room

by rescue squad. The Health Department inspected the

trailer the following day and told PWCS to clean it up!

PWEA admitted such mold to the EEOC in their response

and plaintiffs exhibit 14 shows the trailer had to be shut

down due to the hig’ mold content. PWCS refused to

place Filoso on Administrative leave to get her out of the

building and away from such materials and instead insisted

that she keep trying different parts of the building. PWCS

knowingly violated 29 CFR 1910.1200 to include (h)(3) (1)-

(iv), also OSHA's General Duty Clause.

It is obscene for PWCS to try and state that the particular

substance couldn't be identified as they were the ones using

the products in the different parts of the building and failed

to investigate the name of the particular brand of paint, tile

adhesive etc. They also failed to give Filoso MSDS sheets

so that her doctors would have complete knowledge of all

ingredients in such products. Filoso points out that this is

Se ar ee MEE Mee EE oe a ee eee

not a toxic tort or causation case of products before this

court.

PWCS also does not deny that they failed to file a First

Accident Report as required by Virginia Code despite

Filoso's reporting of illness from such exposures and ER

visit. ER report objective findings indicates wheezing and

high blood pressure from mold exposure.

Filoso was never offered a transfer. Filoso was told in

June 2000 that she was being transferred because "she

couldn't be trusted not to get sick in the building". Filoso

objected to such a transfer being unnecessary, as all

renovation would have been completed prior to the new

school year. She would have had a room with windows,

separate air system had she been permitted to remain at

Brentsville. Because PWCS force transferred Filoso she

ended up in a new building that had chronic toxic sewer

gas. Transferring an employee who has asked for

accommodations and reported health and safety

violations to employer is retaliation. Such retaliation

caused Filoso to be subjected to dangerous toxic sewer

gas in the new building.

Filoso at Forest Park High School (2000-2001)

Filoso was allowed to move to a room with a window in

Sept. 2000 after experiencing significant breathing

difficulties following the school's application of floor wax

immediately preceding her return to work for the 2000-2001

school year. PWCS does not deny that they applied the wax

over 2 consecutive weekends.

In Oct. 2000 PWCS fails to do the proper maintenance on

the HVAC system that would prevent sewer gas from

entering the system. The very fact that Filoso has to even

make such a request requesting disconnect shows PWCS

was not maintaining their equipment properly. PWCS

does not deny such failure on their behalf. PWCS claims

post hoc that this request would have violated building codes

yet they fail to respond to the central issue that by allowing

toxic sewer gas in their system and failing to correct the

problem they are violating both state and federal law. Key to

Filoso's disability is a clean air supply. Such exposures

continued over the next 6 months.

Despite complaints from teachers in all parts of the building

beginning in Oct.2000 some so severe that their classes

had to be completely relocated, PWCS fails to conduct any

air quality testing under such conditions and then criticize

Filoso for not knowing exposure levels.

PWCS would have this court believe that there was no

indoor air quality problem with Forest Park High School. 1.

PWCS does it's own in-house testing, 2. Testing was never

done at the time that Filoso is making her complaints about

such, 3. Their own report identifies sewer gas as chronic

throughout the heating season (Oct-May), 4. PWCS had

already begun corrective action prior to any testing. Despite

their own report PWCS states that other than sewer gas- no

problem. This statement again tries to underscore the toxicity

of sewer gas, which PWCS is fully aware of. PWCS also

does not deny that they once again failed to file a First

Accident Report of Filoso and that it is Filoso who insists

that such be filed. PWCS also does not deny that they did

no testing at any other time to access levels of bus exhaust or

floor wax VOC's in the building yet claim the levels were

acceptable.

It is a complete falsehood that any filters were ever

placed on the roof top sewer vents in 2001 as they state

for the first time. Evidence of this is that school officials

were supposedly unaware that these pipes were

improperly spaced when Prince

William County Building Department cited the school

system for such in March 2002. If school officials are now

oe —EE—

OR ara iran ay at Yai i acing ne gr a aaa nat

stating they knew that the pipes were an issue then they

knowingly violated building codes that carried possibly

criminal prosecution for such violations. Also lack of any

mention of anything other than dried up drains as the

problem in every discovery/deposition until the county cited

them. Principal Gill is on record as is their air quality report

that the only thing they did that year was to pour water down

drains and the "only" source identified by PWCS that year

was dried up drains. Another example of PWCS trying to

manufacture information post hoc and in this cases a false

hood.

Also proof of this as being a false hood is the fact that sewer

gas is again in the building for the 2001-2002 school year.

It is incredulous that Principal Gill or PWCS upon receiving

a letter from Virginia OSHA telling them they had 10 days to

correct the sewer gas problem and them admitting that they

contacted their own environmental shop can still claim they

they had no knowledge that sewer gas was a “health hazard".

Even giving PWCS the complete benefit of the doubt that

they didn't know it was toxic, this information was clearly

presented at Filoso's Fact Finding hearing. PWCS still had

time to correct their actions at that point with such

knowledge and make things right and failed to do so. The

ADA recognizes that employers who take appropriate

actions when presented with information will not have action

taken against them for their efforts to act in good faith.

PWCS chose not to do this. Again, evidence that all they

were interested in was getting rid of Filoso.

—

It is also unbelievable that PWCS still states that no

substances were identified that caused Filoso's

complaints when they admit sewer gas all winter long

and particularly in April upstairs and that the school

applied the wax at the beginning of the year as Filoso

stated. Although Filoso may not have known the brand

name of the floor wax she knew it was floor wax that caused

her problem. Filoso in her deposition very clearly articulates

how she determined it was floor wax.

Filoso's absences directly correspondent to her exposure

to toxic sewer gas in her workspace in April 2001. There

is no pattern of Filoso's absences other than them

corresponding directly to chemical/gas exposures in her

workplace.

PWCS has "materially and adversely changed the work

environment to include toxic sewer gas" and then

demands Filoso work in such an environment. Ample

evidence of sewer gas is in Principal Gill's own testimony

and Air Quality Report.

Accommodations at Forest Park (2001-2002)

Principal Gill admits that there were no accommodations

given to Filoso for the 2001-2002 school year.

Accommodations that would have allowed Filoso to do her

job included a room with a window that opened, separate

HVAC since school continued to have sewer gas in it's

HVAC system that year, and use of a different floor wax.

These are the accommodations that would have allowed

Filoso to do her job at Forest Park. None of these were

provided.

PWCS goes out of its way to mention moving a meeting or

Filoso not attending a meeting she knew nothing about.

PWCS fails to mention that they never provided a filter

of any type for any other room, filters for the schools

HVAC system. locating any meeting in a room with a

window, nothing that would allow Filoso to switch to

another room. PWCS attempted to isolate Filoso from the

rest of the building by their actions.

}

PWCS even criticizes Filoso for leaving a meeting early on

Aug. 27,2001 due to floor wax bothering her. Principal Gill

is on record that the school used no wax for over two

weeks yet PWCS now shows in their own documents it

was still in use the week of Aug. 27" in their own cleaning

schedules. In particular it shows use in areas directly

adjacent to where the meeting is being held. PWCS told

Filoso and the court in depositions and interrogatory

completely untrue statements about floor wax usage in

the building.

PWCS with all its access to product manufactures

custodial staff at the central office level, an

environmental shop fail to even investigate possible

alternative waxes/cleaning products, application

modifications, or scheduling. Nor does anyone consult with

any of the various federal agencies or state that could

possibly help for resource. Only post hoc did PWCS state

they contacted the source Filoso provided in the summer of

2001 but not until Sept. 2001. It is also pointed out that this

was never communicated to Filoso or her doctor and not

until summary judgement did this information magically

appear and was objected to by Filoso's attorney as being after

discovery was closed and after depositions.

PWCS post hoc attempts to state cost and state law

requirements as preventing switching of cleaning products.

PWCS fails to provide any state law that requires testing of

products prior to use in schools. There is no such law. The

only requirement is that the products have MSDS sheets for

them. The Virginia Procurement Act does not require the

same product to be used in every building in PWCS, nor is

there a school board policy that requires such. Even if such a

policy existed, the ADA requires modification of policy as

an accommodation. Filoso never asked that the school be

recleaned. Even the mention of such by PWCS is absurd.

mA adn a ei

Filoso never demanded anything of PWCS. Filoso made

requests for accommodations as allowed by the ADA.

Several notes, letters, evidence this where she asks. While

rerouting the buses may not have been possible, closing

doors instead of leaving them propped open for 20-25

minutes every morning and afternoon and turning off

engines while unloading are completely reasonable and were

DENIED.

It is PWCS that assigned Filoso back to Forest Park and

told her they would do accommodations. Which they did

not do. PWCS does not engage in the Interactive Process

with Filoso.

PWCS knew that Brentsville had a vacancy at that time that

the window is requested. Brentsville had windows that

opened in a science room and thanks to deposition

testimony also provided that it had an independent air

system. Renovation work that had been the issue at

Brentsville was completed for over a year. Brentsville did

not have sewer gas issues, and the equiped earth science

room faced the back of the building away from the bus area.

The ADA states that employers may select among

"effective" and reasonable accommodations. It has been

clearly shown that PWCS by choosing to keep Filoso had

Forest Park completely disregarded both Filoso's and her

doctor's requested accommodation of a room with a

window and separate HVAC. Brentsville would have met

the requirement of PWCS that she be in a designated science

room. It would also have met Filoso's of windows that

opened, an independent HVAC system (learned in

deposition). The only issue left would have been cleaning

products and since Brentsville is a much smaller school any

change would have been less costly.

PWCS states in response to the mention of Brentsville and

the vacancy "moreover, the school was not required to

subject faculty and students to yet another round of Filoso's

excessive absences where neither Filoso or her doctor could

pinpoint the specific substances and/or level of exposure

causing her symptoms and insure that a different school

would not produce the same effect." Yet goes on to tell

Filoso she should have requested Brentsville when she found

out in late August 2001 that her room would not have a

window at Forest Park". PWCS just stated that it wouldn't

have mattered what Filoso requested in the way of a

transfer, as they weren't going to do it. This is in violation

of the ADA, which clearly states reassignment if

accommodation not possible at present position.

Filoso argues that for PWCS even to make such a remark

about absences and Brentsville indicates that they

REGARDED HER as having a disability likely to cause

absences from environmental conditions and they also

considered her disability as substantially limiting in

environments she is able to tolerate.

While Filoso had knowledge that Brentsville had

windows it is not until PWCS is deposed that the

separateness of the HVAC is explained. Each room in the

science area(older part of the building) draws fresh air

from the outside of each room and does not share any

common air from other rooms. It uses radiators with hot

and cold water running in them to heat and cool the

rooms. Fitzgerald supposedly conferred with the

maintenance staff, which would have had knowledge of

such workings as evident in their deposition. In addition,

Filoso and PWEA had been assured by Fitzgerald that

accommodations would be made at Forest Park when she

was informed that she would be reassigned there. Which

they did not do. \

PWCS completely ignores Dr. Smith's letters in April 2000,

April 2001, and May 2001 that do identify substances that

are causing problems for Filoso's disability. More over

Filoso has herself told administration and personnel of

specifically the floor wax, bus exhaust, sewer gas, renovation

products. This is documented in PWCS own documents. It is

absurd for them to make such a statement. PWCS never

denies the products in use do not contain VOC's as Dr. Smith

indicates.

PWCS also states for the first time that they provided Dr.

Smith with Material Safety Data Sheets(MSDS) for him

to review. This is complete fabrication and an attempt to

deceive this court. Never once did they provide Dr. Smith

with any information about any product they used or

their MSDS as they now state. There is no

correspondence asking him to review. There are no

enclosures provided in the 2 letters that Fitzgerald wrote

Dr. Smith. Filoso herself asks PWCS for MSDS for a

number of cleaning products in late Aug. 2001 when she

finds out they're using the same floor wax again.

Under the ADA when an accommodation is asked for to

allow an employee to do their job unless it is an ,

unreasonable/undue hardship an employer needs to make the

accommodation. PWCS does not dispute the fact that a

vacancy existed at Brentsville nor do they dispute that

modification to their HVAC system would not have been

necessary. They contend that they have a 'magically

crystal ball" and could project that attendance would

have been an issue again. That's not the way the ADA

works. Removing Filoso from a school that was doomed to

have sewer gas issues as Principal Gill admitted he had had

with other school of same design was not only logical but

required when a vacancy existed that did just that and

provide her with reasonable accommodations that wouldn't

have cost any money to modify the HVAC system.

‘ /3

Under the ADA reassignment is required when there is a

vacancy that an employee is qualified for and

accommodation is not possible at their present position

(according to PWCS).

Filoso would argue that by keeping Filoso in a building

with known sewer gas issues, providing no

accommodations that have any effect for her breathing

disability and not providing her the opportunity to

transfer to Brentsville is direct proof of their intent to

force Filoso out/retailation. In other words they sat Filoso

up to fail. They placed Filoso in an intolerable position.

"A complete failure to act by the employer is not

required, an employer may not insulate itself entirely

from liability by taking some token action in response to

intolerable conditions. The foreseeable consequences of —

token action by the emplcyer would still be that the

employee resigns. In other words the actions taken must.

be reasonably calculated to end the intolerable working

environment. Amirmoki V Baltimore Gas & Electric Co.

CA-92-3675-DKC (4" Cir. Appeals 1995) -

In Paroline v Unisys Corp, 879 F,2d at 114 "For example

intent may be inferred from a failure to act in the face of

intolerable conditions."

PWCS by failing to assign Filoso to a vacancy that would

have fulfilled accommodation requests about

HVAC/window, instead placed Filoso in an inside room with

no window, no separate HVAC, no change in cleaning

products(in particular the floor wax), providing two filters

that are not even the right type(charcoal), making no

adjustments any where else in the school so that she can

attend meetings/bathroom and exposing her to toxic sewer

gas a second year as they knew would happen clearly show

that they had every intention of forcing Filoso out. Their

ry,

very Own e-mails, "start her on the action plan", "let the

games begin", "see how long that lasts", we know she is

sick", "another nail in her coffin" betray their intentions also.

Most telling is that the Personnel Director, Fitzgerald who

would be knowledgeable about vacancy at Brentsville and as

504 Compliance Officer engages in so called "attempt at

humor" in e-mails and offers not one shred of advise for the

ADA or 504 Act. These actions all place Filoso in such an

environment. |

Also pointed out to this court is that PWCS never once

states to Filoso, Dr.Smith, or PWEA that they don't

believe that Filoso has a disability and does so only after

they have placed her on administrative leave. Also

absence any attempt to contact any other medical

professional for advice, Fitzgerald specifically states he

didn't though he has in other cases or to request that

Filoso see an independent medical examiner and instead

uses stereotype information he obtained from the

Internet.

PWCS in their very own words make Filoso's case that

she has a disability. They state 3 school she had issues

with. An individual that is limited in working in a

number of jobs is disabled under the meaning of

working.

PWCS on page I1 state "she was the only teacher who

found the work environment rendered her unable to -

work". This further proves that Filoso has a disability

that when compare to the general population is

substantially limited. :

ISSUE 2.

PWCS lists several court cases for attendance as essential job

function. In reviewing the ones | could access none of them

address the issue that because of accident/injury in April

eee

2000, and April 2001 that Filoso was entitled to time off

under worker's compensation/FMLA. At no time did Filoso

miss close 12 weeks of work in a school year. Under the

Code of Virginia it is illegal to terminate and employee that

has an accident/injury unless all steps for absenteeism have

been taken. PWCS did not do this. PWCS routinely has

teachers taking maternity leave for 8 weeks, has teachers out

for a month or more for surgeries, cancer trea

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.