# Petition for Writ of Certiorari — Filoso v. Prince William County School Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_1164%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2004 - **Citation:** 541 U.S. 1030 ## Text O31 249 MAR | Ae — = St 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. il 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 13n 12n, 13,23 12n 14 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 nN to 1] 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. ht (A Conclusion 30 / No IN THE SUPREME COURT OF THE UNITED STATES PHYLLIS A. FILOSO, Petitioner, Pro Se V. 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 2 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 | 3 ; 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. Cf 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. 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 i] 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). ta 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). th 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. 5 f / 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 SN aaa i a i i Berns Se a pe Den gad NON ees /é 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. /7 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 14 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 2/ 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 3 3 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, 25 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. Z { i $ 4 $ i 3 2 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 a7 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: i. 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. JY 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 Pe 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) Vv 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 3 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. 4 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 a 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 # 7 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 y 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. P 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 EO 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 23 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, Jd 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. jl 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 iG 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 /S 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 14 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 a1 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 22 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 93 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 ay 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. a5 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 37 "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. gt 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 27 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 35 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. T [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_1164%3A1. Public record. Not legal advice.