Opposition Brief — Filoso v. Prince William County School Board

(2)

“Supreme Courts US. 7

No. 03-1249

—{PRo——tnnte

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

PHYLLIS FILOSO,

Petitioner,

v.

PRINCE WILLIAM COUNTY SCHOOL BOARD,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FourTH CIRCUIT

BRIEF IN OPPOSITION

scnamienaaaiemnt

Mary McGowan

Counsel of Record

MariA DUNBAR STEWART

SICILIANO, ELLis, DYER & BOCCAROSSE

10521 Judicial Drive, Suite 300

Fairfax, Virginia 22030

(703) 385-6692

Counsel for Respondent

186730

ii BEST AVAILABLE COPY

l

TABLE OF CONTENTS

Table of Cited Authorities .................000-

SD ee rr

Summary of the Undisputed Facts Supporting the

ag Pere errr errr rere

A.

B.

Filoso’s Pattern Of Absences ............

Accommodations Provided To Filoso At

Brentsville High School, 1999-2000 ......

Accomniodations Provided To Filoso At

Forest Park High School, 2000-2001 ......

Accommodations Provided To Filoso At

i ey ae Ee + Sr

Reasons for Denying the Petition ...............

A.

The Fourth Circuit Court Of Appeals Properly

Affirmed The District Court’s Decision To

Grant Summary Judgment In Favor Of The

School Board Because The School Board

Made All Reasonable Accommodations For

Filoso’s Alleged Disability. ..............

10

10

il

Contents

B. Filoso Was Not An Otherwise Qualified

Individual Because She Was Not

Performing Her Job At A Level That Met

Her Employer’s Expectations And Was

Unable To Come To Work Even With

Reasonable Accommocations. ...........

The Non-disputed Evidence Established that

the School Board Did Not Retaliate Against

re re ee

Conchasiom ... «os cessed eee ea

Page

14

16

TABLE OF CITEDAUTHORITIES

Cases:

Carter v. Ball, 33 F.3d 450 (4" Cir. 1994)

Ennis v. Nat. Assn. Of Bus. Educ. Radio, Inc.,

53 F.3d 55 (4" Cir. 1995)

Halperin v. Abacus Tech. Corp., 128 F.3d 191

(4" Cir. 1997)

Lamb v. Qualex, Inc., 33 Fed. Appx. 49 sie Cir. 2002)

St. Mary’s Honor Center v. Hicks, 509 U.S. 502,

125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993)

Tyndall v. National Education Centers, Inc., 31 F.3d

209 (4" Cir. 1994)

Williams v. Cereberonics, Inc., 871 F.2d 452 (4" Cir.

—————— ere ——

1

Respondent Prince William County School Board hereby

submits this Brief in Opposition to the Petition for a Writ of

Certiorari filed by Petitioner Phyllis Filoso.

STATEMENT OF THE CASE

Petitioner Phyllis Filoso (“Filoso”) was employed as a

science teacher under a continuing contract by the Prince

William County Public Schools from 1996 until July of 2002,

when the Prince William County School Board (“the School

Board”) voted to uphold the recommendation of a statutory

grievance panel that Filoso be dismissed from her

employment for excessive absences. Defendant’s Summary

Judgment Ex. A—Plaintiff’s Uncontested Facts, para. 1;

Def. SJ Ex. B—Recommendation of Fact Finding Panel.

Filoso subsequently filed suit in the United States District

Court for the Eastern District of Virginia under the Americans

with Disabilities Act (“the ADA”) and Title VII, alleging that

she was terminated because she suffered from idiopathic

environmental intolerance syndrome (“IEIS”), and in

retaliation for filing a complaint based on her alleged

disability.

On July 3, 2003, the Honorable Leonie M. Brinkema

granted summary judgment to the School Board on the

grounds that: (1) the School Board provided all reasonable

accommodations before terminating Filoso for excessive

absenteeism, (2) Filoso was unable to perform her job even

with reasonable accommodations since she was unable to go

to work, and (3) there was insufficient evidence of retaliation.

Transcript of Motions Hearing before the Honorable Leonie

M. Brinkema, U.S. District Judge, pp. 20-24; U.S. District

Court Order of July 3, 2003.

2

The School Board had also filed a “Daubert” Motion

seeking to exclude expert testimony that Filoso suffered from

a disability in the form of IEIS, also known as “MCS” or

multiple chemical sensitivity syndrome, a controversial and

unaccepted medical diagnosis.’ Since Judge Brinkema

assumed, but did not decide, that Filoso suffered from a

disability for purposes of summary judgment, she did not

reach the Daubert motion, which was an integral part of the

School Board’s argument that Filoso was not disabled within

the meaning of the ADA. Transcript of Motions Hearing,

U.S. District Court, pp. 21-22.

On July 29, 2003, Filoso appealed the district court’s

grant of summary judgment in favor of the School Board to

the United States Court of Appeals for the Fourth Circuit.

The Fourth Circuit affirmed the district court’s decision.

Unpublished Opinion of the U.S. Court of Appeals for the

Fourth Circuit, December 3, 2003. Filoso now appeals the

Fourth Circuit’s decision to this Court.

1. The School Board argued that testimony that Filoso suffered

from IEIS or MCS was inadmissible as a matter of law since

inter alia, that condition is not a recognized diagnosis accepted by

the medical community, lacks scientific validity, has no demonstrated

etiology, has not been subjected to testing nor approved in the medical

literature, and has never been admitted in evidence by any federal

court. Further, Filoso’s treating physician had tesitfied that the

medical community did not accept MCS or IEIS as a valid diagnostic

entity, and that neither he nor anyone else could link Filoso’s

symptoms to any particular odor, substance, chemical, or level of

exposure in any of the school buildings in which she worked.

3

SUMMARY OF THE UNDISPUTED FACTS

SUPPORTING THE DISTRICT

COURT’S RULING

A. Filoso’s Pattern Of Absences

Beginning in the 1999-2000 school year, Filoso began

to absent herself from work as a science teacher at Brentsville

District Middle Senior High School, either failing to show

up at all, or leaving soon after her arrival. Not only was Filoso

absent an excessive amount, but the pattern of her absences

clustered around weekends and holidays. After the beginning

of May, which coincidentally concluded the performance

evaluation cycle for continuing contract (tenured) teachers,

Filoso was absent from work continuously through the end

of the school year. Def. SJ Ex. C—Fitzgerald Affidavit; Def

SJ Ex. D—Chart of Absences; Def. SJ Ex. E—Summary of

Absences.

After the Christmas holidays, Filoso was absent from

Brentsville, in whole or in part, 56 of the 194 days her

contract required her to work. From February 2, 2000,

which was the beginning of the second academic semester,

Filoso was absent 50 of 96 days, or 52% of the time.

From May 1, 2000 through the end of the school year, Filoso

was absent 35 of 37 workdays, or 95 % of the time she was

required to work. /d. During the 1999-2000 school year,

Filoso did not work immediately prior to or following

weekends and/or holidays, 50 of 56 days, or 89% of the days

she was absent. /d.

After she was transferred to Forest Park Middle Senior

High School for the 2000 — 2002 school year, Filoso repeated

her pattern of excessive absences, absenting herself from her

4

classroom responsibilities, in part or in whole, 53 of the 195

contracted workdays, or 27%. Jd. The majority of those

absences occurred during the second semester, which began

on January 29, 2001. During that semester, Filoso was absent

45 of 95 days or 47 % of the time she was required to work.

From May 1, 2001 through the end of the school year, she

was absent 31 of 34 days, or 91% of the time. Forty-eight of

the 53 days Filoso was absent from school, or 90% of the

days absent, fell prior to or following holiday weekends. Jd.

On October 16, 2001, Filoso was placed on

administrative leave with pay and on November 2",

recommended for dismissal after she had been absent, in

whole or in part, 30 of 37 days, or 81% of the time she was

required to work during the first six weeks of the 2001-2002

school year. By that time, entire classes of students who had

been assigned to Filoso had never even met her. Def. SJ Ex.

F—Filoso Contracts; Def. SJ Ex. G—Gill Deposition, pp.

86-87; Def. SJ Ex. H-2—Gill letter of September 18, 2001.

B. Accommodations Provided To Filoso At Brentsville

High School, 1999-2000

Filoso claimed that she suffered adverse reactions to

undetermined irritants during her employment at Brentsville

High School during the 1999-2000 school year, while

portions of the school building were being sequentially

renovated. For example, Filoso claimed to experience

“flu-like” symptoms in the fall of 1999, which she attributed

to new carpeting and shelving and inadequate air conditioning

that she encountered on one occasion when she took her

students to the school library. Def. SJ Ex. N—Filoso

Deposition, pp. 116-119; Def. SJ Ex. Q—Filoso List of

Accommodation Requests; Def. SJ Ex. R-7—May 25, 2000

5

Email from Michael Mulgrew to Filoso. However, Filoso

did not complain to the principal nor make any request for

accommodation. Def. SJ Ex. N, pp. 116-119.

In January, Filoso claimed to smell an odor which made

her “kind of sick to my stomach,” which she attributed to

“the stuff they were using to put down the tile” on the floor

of a classroom down the hall. Jd. pp. 125-27. Filoso could

not identify the “stuff” and conceded that the odor

“could have been other things—I mean, there was lots of

chemical usage going on in that building.” Jd. p. 127. Aweek

later, she complained about the odor to her principal, Michael

Mulgrew, but made no request for accommodation.

Id, pp.127-28.

School officials at Brentsville High School made

numerous accommodations in response to Filoso’s

subsequent complaints that she was sensitive to multiple

unidentified substances and volatile organic compounds

(“VOCs”) in the building which she associated with the

ongoing renovations. Filoso was allowed to use a charcoal

air filter and fan in her classroom, her hall duties were

modified, she was frequently permitted to leave school early,

and her classroom was repeatedly changed (five times in April

alone). She was moved away from areas of the building which

were undergoing renovation, she was moved to a trailer,

moved back into a completed area of the building, moved to

a free standing modular unit some distance from the building,

allowed to teach students outdoors, transferred unsuccessfully

to a middle school, and simply permitted to stay home on

many days when she complained of unidentified odors in

the school. Finally, the school hired a “permanent” substitute

just to cover Filoso’s unpredictable absences. Def. SJ Ex.

R-5—May 11, 2000 Email from Michael Mulgrew to

6

Rick Fitzgerald; Def. SJ Ex. R-6 — May 18, 2000 Email from

Mulgrew to Steve Webb; Def. SJ Ex. W — Deposition of

Michael Mulgrew pp. 46-47.

Each time Filoso was moved in the spring of 2000, so

were her students. On occasion these moves also

displaced other teachers and students. Filoso’s repeated

moves were disruptive to the instructional program of her

students and the operation of the school. Although she

occasionally showed up to drop off lesson plans, after

May 3, 2000 and prior to her students’ SOL exams, Filoso

failed to come to work altogether. Def. SJ. Ex. C; Def. SJ

Ex. D; Def. SJ Ex. E; Def. SJ Ex. O—Webb Affidavit;

Def. SJ Ex. GG—Edelstein Deposition; Def. SJ Ex. Q—

Filoso List of Accommodation Requests; Def. SJ Ex. R-7;

Def. SJ Ex. N, p. 138; Def. SJ Ex. PP—Carbone Affidavit.

After several weeks with Filoso out of school,

Michael Mulgrew, her principal, reassigned her to Godwin

Middle School where she worked one day and then went

home with a headache. Def. SJ Ex. N, pp. 145-46.

When Filoso’s absences continued despite these

accommodations, school officials offered her a transfer to

another high school. Filoso chose a brand new school,

Forest Park High School, opening in the fall of 2000.

Id., pp. 155-56.

C. Accommodations Provided To Filoso At Forest Park

High School, 2000-2001

During her first year at Forest Park (2000-01), Filoso

immediately began to complain about various odors that she

associated with that building, including bus fumes, sewer

gas, floor wax, cleaning products, student perfumes, and nail

7

polishes. /d., pp. 163-165, p. 183; Def. SJ Ex. G pp. 81-83,

p. 92; Def. SJ Ex. DD—Filoso Email of August 31, 2001;

Def. SJ Ex. Q; Def. SJ Ex. R-7.

At Forest Park, Filoso’s many complaints were also

accommodated. She was excused from hall duties and

permitted to teach her earth science students in a vacant math

classroom with a window, rather than an interior classroom

specifically designed and equipped as an earth science

laboratory. Def. SJ Ex. N, pp. 136-64; Def. SJ Ex. G,

pp. 12-13, 43-44; Def. SJ Ex. AA—Gill Handwritten Notes

2001. Filoso was also allowed to teach with her window open,

despite complaints from students and parents about the

temperature of the classroom and the need for children to

wear additional clothes during the winter. She was permitted

to use a fan and charcoal filter in her classroom. Def. SJ Ex.

N, pp. 168-69; Def. SJ Ex. G pp. 33-34, 52-53. One student

was transferred from Filoso’s class because her perfume made

Filoso ill. Def. SJ Ex. N, pp. 71-72. After Filoso claimed

that the odor of sewer gas was contributing to her symptoms,

the building engineer installed filters on the roof top sewer

vents. Def. SJ Ex. G pp. 24-26.

After Filoso filed complaints with Virginia OSHA and

the county building department, the school’s environmental

engineer conducted air quality tests which detected no odors,

other than sewer gas emanating from dry traps on the roof of

the building. Def. SJ Ex. GG, pp. 15-18; Def. SJ Ex. HH—

Air Quality Report from Forest Park and Mercer Letter to

Virginia OSHA. OSHA did not cite the school system nor

advise that sewer gas was a health hazard. Jd. No tests were

ever conducted by OSHA or anyone else that identified the

existence of any particular substance that caused Filoso’s

continued complaints. Def. SJ Ex. GG, pp. 15-18; Def. SJ

Ex. G pp. 21-26.

8

Despite these accommodations, Filoso’s pattern of

attendance problems persisted throughout the 2000-2001

school year. Numerous substitutes were retained to teach

Filoso’s classes and the instructional continuity of her

students was repeatedly disrupted by her unanticipated

absences. Def. SJ Ex. C; Def. SJ Ex. D; Def. SJ Ex. E; Def.

SJ Ex. G, p. 86, pp. 88-90; Def. SJ Ex. PP.

D. Accommodations Provided To Filoso At Forest Park,

2001-2002

Much to Filoso’s dissatisfaction, during her second

year at Forest Park (20601-2002) she was assigned to an earth

science laboratory because the student population had

increased by 700 students and all classrooms were

needed for their intended purposes. Def. SJ Ex. N, p. 168;

Def. SJ Ex. G, p. 30. In addition, the district’s science

curriculum supervisor had advised the principal that all

students (including Filoso’s) were required to be in an

equipped earth science classroom in order to comply with a

state requirement that 40% of the curriculum include

laboratory work. Def. SJ Ex. G pp. 50-52. Filoso’s placement

in aroom with a window the previous year had not diminished

her pattern of absences. Def. SJ Ex. C; Def. SJ Ex. D;

Def. SJ Ex. E.

Filoso was again allowed to use a charcoal filter and

fan. Def. SJ Ex. KK—Fitzgerald Letter of August 26, 2001.

Additionally, the school provided her with two HEPA air

purifiers, and the building engineer installed a separate air

filter in the HVAC vent of her classroom. Jd. Even though

neither Filoso nor her physician had ever identified a specific

product or level of VOCs that triggered her symptoms, school

officials reviewed Material Data Safety sheets for cleaning

9

products used in the school to ensure that they were

nontoxic and had a low level of volatile organic compounds

(VOCs). Def. SJ Ex. J—Smith Deposition, pp. 68-69; Def.

S.J. Ex. JJI—Rice Affidavit; Def. SJ Ex. C; Def. SJ Ex. D;

Def. SJ Ex. E.

Even before the beginning of her second year at Forest

Park, Filoso failed to attend a required teacher workday.

Def. SJ Ex. OO—Emails Regarding Filoso Attendance;

Def. SJ Ex. C; Def. SJ Ex. D; Def. SJ Ex. E. She also failed

to attend an in-service training. Def. SJ Ex. S; Def. SJ

Ex. JJ. After school began, the school accommodated Filoso’s

demand that a system-wide training meeting be moved from

her classroom despite the inconvenience to all faculty. Jd.

Science department meetings were also moved from Filoso’s

room although she was absent on the Friday afternoons when

the meetings were held. Jd. Filoso was again excused from

hall duty. Def. SJ Ex. G pp. 79-80.

On the first day back at school Filoso complained about

bus fumes, although the buses had been gone for four hours

and her new room had no window. Def. SJ Ex. N, p. 128.

She was permitted to leave a faculty meeting early when she

complained of floor wax fumes, although the school did not

use floor wax. Def. SJ Ex. OO. From Sept. 4" to Oct. 16",

Filoso worked only seven days, leaving early on most of those

days. Def. SJ Ex. C; Def. SJ Ex. D; Def. SJ Ex. E; Def. SJ

Ex. JJ; Def. SJ Ex. G p. 86.

The school accommodated Filoso’s absences by pulling

the science department chairman and other teachers from their

own duties and hiring substitutes. Def. SJ Ex. G p. 86;

Def. SJ Ex. JJ. Filoso’s absences persisted. Parental

complaints increased, particularly from the parents of

10

students who were in Filoso’s afternoon classes and had never

even met their teacher. Def. SJ Ex. G pp. 85-87; Def. SJ Ex.

JJ. School officials were forced to hire a long-term substitute

who was certified in earth science for the sole purpose of

covering Filoso’s classrooms when she failed to show up or

left early. Def. SJ Ex. C; Def. SJ Ex. D; Def. SJ Ex. E;

Def. SJ Ex. G pp. 89-90. Consequently, by the fall of 2002,

the school system was paying two teachers for one position.

On October 16", 2002, Filoso was placed on

administrative leave with pay and recommended for dismissal

after she had been absent 30 of 37 days or 81% of the first

six weeks of school. In the fall of 2002, Filoso filed several

grievances alleging that the school division had failed to

provide for the accommodations she had requested on the

ADA complaint. Due to her attorney’s repeated requests for

continuances of hearings on the grievances, Filoso remained

on paid leave until the following May when the School Board

upheld the recommendation of a statutory grievance panel

that she be terminated for excessive absenteeism.

REASONS FOR DENYING THE PETITION

A. The Fourth Circuit Court Of Appeals Properly

Affirmed The District Court’s Decision To Grant

Summary Judgment In Favor Of The School Board

Because The School Board Made All Reasonable

Accommodations For Filoso’s Alleged Disability.

For the sake of analysis, the district court assumed, but

did not decide, that Filoso suffered from a disability that

impairs a major life function. Transcript of Motions Hearing,

U.S. District Court, p. 20. However, the court found that the

School Board made reasonable efforts to accommodate

£1 hg TEES TEE a EER eT

11

Filoso’s many complaints. Jd. Despite the numerous

accommodations made by the School Board over the course

of three school years, Filoso claimed that she was entitled to

additional accommodations. For example, while at Forest

Park, Filoso demanded that her classroom be disconnected

altogether from the computerized central HVAC system,

which provides air conditioning, heat, humidity and air

quality control to the entire seven-acre building, housing 2000

students and 125 teachers. Def. SJ Ex. G p. 64. The district

court properly found that such a request was not reasonable

given the competing need of the student body and faculty

for a suitable learning environment, especially where the

undisputed evidence established that school officials were

prevented from disconnecting Filoso’s classroom by building

and health codes and such a measure would have a deleterious

affect on the air quality and temperature of the classroom.

Def. SJ Ex. G pp. 61-62.

Similarly, Filoso cemanded that her room be provided

with a separate HVAC system. Again, the court properly ruled

such a request unreasonable for the reasons previously stated,

in addition to evidence that providing a separate HVAC

system would cost $60,000 to $80,000 and take over a year

to install. Def. SJ Ex. P—Deposition of Randy Dasher,

pp. 35-39. Also there was no evidence that such drastic

measures would ameliorate Filoso’s alleged reactions to a

host of never-identified substances, which condition(s) Filoso

had described as requiring “constant modifications to the

environment around her to ensure adequate ventilation and

avoidance of a myriad of irritants.” Plaintiff’s Brief in

Opposition to Summary Judgment p. 20.

Filoso also complained that the school system failed to

eliminate “highly odiferous” cleaning products containing

i2

VOCs. Although Filoso and her physician never identified

any particular substance or product that triggered Filoso’s

alleged symptoms, school officials did determine that all

products in use at Forest Park were nontoxic and had low

levels of VOCs. Def. SJ Ex. JJ; Def. SJ C; Def. SJ Ex. D;

Def. SJ Ex. E; Def. SJ Ex. J, pp. 68-69. Furthermore, it was

not until September 13, 2001 that Filoso provided the school

with the name of a company that sold cleaning substances

which Filoso thought would reduce her symptoms. When

school officials compared the recommended products with

those cleaning products already in use at Forest Park, the

VOC levels were similar, or even lower than those

recommended by Filoso. Not only was the cost of the

alternative products prohibitive but, procurement regulations

and state law required school officials to test and bid out any

new products, rendering Filoso’s request too late to procure

the products and re-clean the entire building. Def. SJ Ex. N,

190-196.

During her first year at Forest Park, Filoso had also

demanded that school officials alter the existing design and

function of the building and adjacent parking areas to move

the school bus “drop-off area” to the opposite side of the

building in order to eliminate any bus fumes entering the

open window of her classroom. Def. SJ Ex. N, p. 183;

Def. SJ Ex. Q; Def. SJ Ex. R-7; Def. SJ Ex. G, pp. 81-85.

Filoso’s request was patently unreasonable since the area

designated for the drop-off and pick-up of students was

specifically designed to comply with the Virginia Department

of Education safety guidelines, to isolate bus traffic

from pedestrians and student drivers, and to funnel

students directly into the adjacent classrooms rather than

through a warren of hallways and common areas. Def. SJ

Ex. G pp. 81-83; Def. SJ Ex. P, pp. 33-35. The evidence

13

demonstrated that such an accommodation would be

prohibitively expensive, divert monies from other capital

improvements with higher priority and benefit to others, and

disrupt the entire operation of the school. The district court

found these proposed accommodations, as well as Filoso’s

insistence on teaching her earth science classes in a

non-equipped classroom, unreasonable. Transcript of

Motions Hearing, U.S. District Court, pp. 21-22.

B. Filoso Was Not An Otherwise Qualified Individual

Because She Was Not Performing Her Job At A Level

That Met Her Employer’s Expectations And Was

Unahle To Come To Work Even With Reasonable

Accommodations.

The record of Filoso’s lack of attendance at three

different schools over the course of three years, despite a

host of accommodations, demonstrated that Filoso was not

qualified to teach. Regardless of the quality of a teacher’s

classroom skills, attendance is an essential function of a

teacher’s job which impacts the instructional continuity of

students and frequent absences “render a teacher unable to

function effectively.” Tyndall v. National Education Centers,

Inc, 31 F.3d 209, 213 (4" Cir. 1994). The Fourth Circuit

properly recognizes that an employee who does not come to

work cannot perform any of her job functions and iS,

therefore, not qualified within the meaning of the ADA or

Title VII, nor is she living up to her employer’s job

expectations. See Tyndall, supra; Lamb v. Qualex, Inc.,

33 Fed. Appx. 49, 56-57 (4"Cir. 2002); Halperin v. Abacus

Tech. Corp., 128 F. 3d 191,199 (4 Cir. 1997). The trial court

correctly ruled that a school system is not obliged to “interrupt

or interfere with the educational process of their students to

accommodate a teacher who is unable to come to work

14

because of a disability.” Transcript of Motions Hearing,

U.S. District Court, p. 21. Thus, the court found that the

School Board made reasonable accommodations for Filoso

but that “she was unable to perform the essential functions

of the job because she simply wasn’t coming to work.” /d.

C. The Non-disputed Evidence Established that the

School Board Did Not Retaliate Against Filoso.

The district court noted that Filoso received two letters

from the School Board regarding the negative effects of her

absenteeism, several months before she ever filed her formal

complaint alleging an ADA violation. Since Filoso’s

absenteeism persisted despite notice that she would be

terminated for any additional unexcused absences, the court

found no nexus between the filing of Filoso’s ADA claim in .

the fall of 2002 and her subsequent termination. The district

court properly concluded that “there’s absolutely no evidence

in this record that would support the inference that the

termination was taken out of retaliatory reasons.” Transcript

of Motions Hearing, U.S. District Court, p. 23.

A mere temporal relationship between the filing of a

grievance and an adverse employment action is not sufficient

to establish the causal relationship necessary to show

retaliation or that any employee was terminated because of a

disability. “Mere knowledge on the part of an employer that

an employee ... has filed a discrimination charge is not

sufficient evidence of retaliation to counter substantial

evidence of legitimate reasons for adverse personnel action

against the employee.” Carter v. Ball, 33 F.3d 450, 460

(4" Cir. 1994) quoting Williams v. Cereberonics, Inc., 871

F.2d 452, 457 (4 Cir. 1989)

15

The record contained no evidence that Filoso was fired

for any reason other than her failure to come to work and the

disruptive effect of her absences on her students and the

operation of the school. Although Filoso had a subjective

belief that school officials terminated her because they were

“fed up” with her disability, the objective evidence

demonstrated that school officials were, if anything,

frustrated by Filoso’s continued absences despite their

persistent efforts to accommodate her complaints. Filoso

failed to work even when she was given the accommodations

that she requested and it was readily apparent that her

absences, which were clustered around weekends and

holidays, had nothing to do with her alleged symptoms.

Since Filoso relied solely on speculation and failed to

present affirmative evidence that her alleged disability was

a determining factor in her termination, summary

judgment was appropriate. See St. Mary's Honor Center v.

Hicks, 509 U.S. 502, 125 L. Ed. 2d 407, 113 S. Ct. 2742

(1993); Ennis v. Nat. Assn. Of Bus. Educ. Radio, Inc.,

53 F.3d 55, 59.

16

CONCLUSION

For the foregoing reasons, the Petition for a Writ of

Certiorari should be denied.

Respectfully submitted,

Mary McGowan

Counsel of Record

MariA DUNBAR STEWART

SICILIANO, ELLIS, DYER & BOCCAROSSE

10521 Judicial Drive, Suite 300

Fairfax, Virginia 22030

(703) 385-6692

Counsel for Respondent

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