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Smith v. Loudoun County Public Schools

United States District Court, E.D. Virginia, Alexandria Division

February 18, 2016

ADONIA K. SMITH, Plaintiff,
v.
LOUDOUN COUNTY PUBLIC SCHOOLS, Defendant.

MEMORANDUM OPINION

JAMES C. CACHERIS UNITED STATES DISTRICT COURT JUDGE

This matter came before the Court on Defendant’s motion for summary judgment. [Dkt. 31.] For the reasons stated below, the Court will grant the motion in part and deny the motion in part. Also before the Court is Plaintiff’s motion for reconsideration of the Court’s January 21, 2016 motion-in-limine order. [Dkt. 44.] The Court will deny the motion to reconsider.

I. Background

This lawsuit concerns Loudoun County Public Schools’ (“Loudoun Schools” or “Defendant”) employment of Plaintiff Dr. Adonia K. Smith (“Smith”).[1] Loudoun Schools hired Smith in August 2007 as a teacher of special education for the hearing impaired at Francis Hazel Reid Elementary School (“FHR”). (Pl.’s Ex. 10.) Smith, who has been profoundly deaf since birth and is fluent in American Sign Language (“ASL”), was assigned to teach several students who are also deaf or hard of hearing. (Smith Decl. ¶¶ 2-4.) A large part of Smith’s job was managing the Individualized Education Plans (“IEP”) for two deaf students, VR and JC. (Smith Decl. ¶¶ 2-5.) In this role, Smith oversaw the students’ IEPs by drafting the plans, soliciting parent and administrator approval of the plans, assessing and collecting student performance data, and recording the students’ progress as required by law. (Kearny Depo. at 35-37; McCartin Depo. at 37-38.) During her three years at FHR, Smith also had teaching and case-management responsibility for other students. (Smith Decl. ¶¶ 3-4; McCartin Depo. at 72.)

Loudoun Schools attempted to accommodate Smith’s disability in several ways. At all times during Smith’s employment, Loudoun Schools maintained a contract with an interpreter placement company, WeInterpret, to provide state-qualified ASL interpreters at scheduled events, such as staff meetings, parent-teacher conferences, IEP meetings, and other employer-sponsored events. (Def.’s SOF ¶ 13.) When Smith could anticipate her own need for an interpreter outside of scheduled events, she could also request a WeInterpret interpreter. (Smith Depo. at 37.) According to Smith, however, interpreters occasionally did not show up as requested or did not meet her expectations. (Id.)

To accommodate the need to verbally communicate with people outside of FHR or not in the same room as Smith, Loudoun Schools installed a video relay phone in her class in spring 2009. (Smith Depo. Ex. 32.) This phone allowed her to sign ASL into a screen linked to an interpreter who would verbally translate the call through a standard phone line. (Id.) In addition to the phone in her room, FHR placed a second phone in a workroom across the hall. (Kovach Depo. at 93-95.) In October 2009, administrators removed the phone from Smith’s classroom and placed it in a locked equipment room in the library. (Smith Decl. ¶ 19.) Although these accommodations were eventually the subject of much dispute, Smith’s first two years at FHR were relatively unproblematic.[2]

All records indicate that Smith succeeded during her first year as a teacher at FHR. During that time, Smith worked closely with two hearing teachers who were also fluent in ASL and would occasionally interpret for her. (Smith Decl. ¶ 1; DeSuza Decl. ¶ 8.) In the spring of this first year, another ASL-proficient teacher joined FHR and would also occasionally interpret for Smith. (Long Decl. ¶¶ 2, 8.) With the friendship and help of these colleagues, Smith flourished at FHR. The principal gave her a favorable end-of-year review, applauding Smith’s “positive impact” on students and “compassionate and dedicated” demeanor. (Pl.’s Ex. 7.)

Smith’s second year at FHR began much like the first year ended. In December, Loudoun Schools’ new deaf and hard of hearing specialist, Eileen McCartin (“McCartin”), evaluated Smith as using “effective and explicit instructional strategies, ” having “very positive interactions” with her student, and being “very responsive to the child’s individual learning style and unique needs.” (McCartin Depo. Ex. 1.) Smith left for winter break apparently on good terms with all students, faculty, and administrators at FHR.

At the beginning of the spring 2009 semester, however, the hard and hearing department at FHR undertook a new educational direction. In the last week of February, the principal held a meeting to announce that FHR would adopt a “total communication approach” to educating deaf and hard of hearing students. (Def.’s SOF ¶ 23.) Under this approach, teachers use whatever communication method is effective for teaching a hearing-impaired student, whether that method is ASL, non-ASL sign languages, spoken English, fingerspelling, or any other method. (Def.’s SOF ¶ 24; McCartin Depo. at 91-93; McGraw Depo. at 113.) There is some evidence that Smith fundamentally disagrees with the total communication approach because it does not prioritize ASL. (McGraw Depo. at 112-14; Jochems Depo. at 141-42 (calling Smith “resistant” to the school’s policy).) For example, five days after the meeting, Smith wrote in an email to her students’ guardians that total communication “creates communication mess in the Deaf community, ” “should be discarded in favor of ASL-English bilingual education, ” is akin to the “oppression of language and communication, ” and is “a kind of patronizing at the Deaf-centric education.” (Def.’s Ex. 35.) In her deposition, however, Smith contends that her disagreement with total communication is limited to her belief that ASL is absolutely necessary for deaf students, as it is “a pure visual language” that gives students a foundation for learning other subjects. (Smith Depo. at 154-61; McCartin Depo. at 30-31.)

Days after the February meeting, Smith submitted a request that a full-time interpreter be made available for her every day. (Def.’s SOF ¶ 26; Smith Depo. Exs. 25, 26, 37.) Smith explained that a full-time interpreter would “be a big help to me for my interaction with school administrators, teachers, staff members, parents, and students who don’t know ASL.” (Smith Depo. Ex. 25.) The principal submitted the request to Loudoun Schools’ risk management division, which began to investigate the issue with the employee benefits department. (Smith Depo. Exs. 26, 30, 31, 36.) Personnel from these departments discussed the request through email and occasionally involved Smith in that conversation. (Id.) By October 2009, the investigation was ongoing and had expanded to include benefits coordinator Michele Kovach, deaf and hard of hearing specialist Eileen McCartin, the FHR assistant principal, two representatives from the teachers’ association, and assistant principals from other schools employing deaf individuals. (Kovach Depo. Exs. 2-12.)

Shortly after submitting the request, Smith received her first documented reprimand for interpersonal conflicts at FHR. On March 13, 2009, the assistant principal reprimanded Smith for getting “angry and hostile” toward a substitute teacher when a student attempted to interpret between Smith and the substitute. (Smith Depo. Ex. 26.) The assistant principal also expressed disappointment that Smith had not heeded his “plea on two occasions for teamwork and professionalism.” (Id.) According to Smith’s account, by contrast, the substitute “popped up” in the classroom, asked the student to interpret, and then “told on” Smith for preventing the student from interpreting. (Smith Depo. at 168.)

Even with this March reprimand, Smith received an overall satisfactory performance review for her second year and Loudoun Schools renewed her contract for a third year. (Def.’s Ex. 52.) The principal’s end-of-year review applauded Smith for using “good teaching strategies and techniques” and serving as “an excellent model for ASL.” (Id.) But the review also noted areas for improvement, including lesson planning, student assessment, timely IEP management, and “knowledge base of the curriculum and Standards of Learning.” (Id.) The principal also encouraged collaboration with general education teachers and recommended that Smith “work with a mentor on the issues mentioned” in the evaluation. (Id.)

Smith filed a rebuttal to the principal’s critiques. (Def.’s Ex. 53.) With respect to her knowledge base, Smith wrote that she was “familiar with the curriculum and standards of learning, ” but that she had to teach “differently from the established curriculum in order to maximize” her students’ learning. (Id.) Regarding her IEP management, Smith wrote that all the teachers at FHR were still learning the new IEP process and that her IEPs were delayed because parents exercised their rights to refuse to sign the IEPs. (Id.) Smith also rebutted that she “was fully ready to work closely with the regular classroom teacher but [that teacher’s] attitude was condescending.” (Id.) Lastly, Smith wrote she would request technical assistance for implementing lesson planning on the computer, but she “doesn’t require having a mentor.” (Id.)

Over the summer, several changes occurred at FHR that affected Smith’s job performance. First, the two ASL-fluent teachers who previously interpreted for Smith were transferred, leaving her less able to verbally communicate in an impromptu manner. (DeSuza Decl. ¶ 17; Martinez Decl. ¶ 4.) For a few months in fall 2009, Smith continued to rely on another employee for some daily interpretation needs.[3] But in October 2009, that employee was also transferred. (Michelle Decl. ¶¶ 2-3; McCartin Depo. at 106.) Second, Brenda Jochems (“Jochems”) and Ellen McGraw (“McGraw”) took over as the principal and assistant principal, respectively. (Def.’s SOF ¶ 37.) Lastly, the school adopted the Virginia Grade Level Assessment (“VGLA”) methods for testing disabled students, which altered Smith’s student-evaluation and record-keeping responsibilities. (Smith Decl. ¶ 38.)

Soon into the fall 2009 semester, Smith submitted a new accommodation request for an interpreter to assist her for a portion of every school day. (Def.’s Exs. 36, 54.) This request became part of the ongoing investigating into the feasibility of a full-time interpreter. (Def.’s SOF ¶ 38; Def.’s Ex. 54; Jochems Depo. at 21; Kovach Depo. Ex. 5.) Smith met with a benefits representative on October 7, 2009, regarding her requests. (Smith Decl. ¶ 18.) Instead of granting the accommodations, however, the administration moved the video relay phone from Smith’s classroom to a locked equipment room in the library. (Smith Decl. ¶ 19.) In response, Smith added the return of her video relay phone to her previous accommodation requests.

Around the same time in October 2009, Smith received several letters of reprimand for interpersonal conflicts. On October 13, 2009, Assistant Principal McGraw reprimanded Smith for her “inappropriate behavior” during a September IEP meeting. (Def.’s Ex. 60.) According to McGraw, Smith attempted to leave the meeting shortly after it began and then contributed only unproductive comments, such as “whatever you think” and “I agree with them, ” even when no one else had made a suggestion. (Id.) Smith rebutted this account of the meeting in a letter explaining that her statements were merely an attempt to “allow the process to move forward, since there was agreement among the majority.” (Pl.’s Ex. 33.) Smith also wrote that she “did not feel supported by the team” regarding her findings of the student’s academic and social development, and was troubled that her “perspective did not seem to be truly considered.” (Pl.’s Ex. 33.)

Also on October 13, 2009, deaf and hard of hearing specialist McCartin sent a letter of reprimand citing concerns about Smith’s “professional conduct and behavior.” (McCartin Depo. Ex. 4.) McCartin wrote that over several months she had observed “a pattern of behavior that has become more and more unprofessional and unproductive.” (Id.) In particular, she listed a September 22 incident when Smith became “irate” after being assigned to continue teaching VR and JC. (Id.) McCartin said Smith refused to accept the assignment because she was “burned out and wanted a normal child” to teach and that Smith continued this “outburst” for several minutes by using “aggressive language, glaring, pushing papers on the desk, banging the desk with your fists, etc.” (Id.) Smith rebutted by letter stating that she never refused to accept the new position but instead merely “felt strongly that VR and JC deserve to have a different teacher (new one) and, at the same time, I need some break from hard-working with VR and JC.” (Pl.’s Ex. 31.) Smith also accused McCartin of making up the story about the outburst “to sound like I behaved such a way.” (Pl.’s Ex. 31.) McCartin responded to this last point with her own rebuttal, writing “I take serious offense that you would accuse me of providing false information.” (McCartin Depo. Ex. 5.)

On October 16, 2009, Principal Jochems also reprimanded Smith by letter for an event occurring on October 9, 2010. (Def.’s Ex. 61.) Jochems wrote that Smith refused to allow a deaf substitute teacher to enter Smith’s classroom and degraded the teacher by writing on a white board, “She’s deaf. She cannot help me.” (Id.) Jochems characterized the comment as “extremely offensive, ” and described Smith’s behavior as “unprofessional and demonstrat[ing] a flagrant disregard for my expectation of how you are to work with your colleagues as a teacher at this school.” (Id.) Smith rebutted with a letter saying that she merely told the substitute she could leave “because she was not needed.” (Pl.’s Ex. 34.) Smith also stated that a communication breakdown from lack of interpreters caused others to misunderstand her attempt to “be helpful in solving the problem by sending [the substitute] back to her duties as a teacher’s aide so her time could be better spent in her classroom.” (Id.)

About three weeks after these letters of reprimand, employee benefits reached a final decision on Smith’s accommodation requests. On November 3, 2009, the employee benefit supervisor sent a letter denying Smith’s requests for a video relay phone in her classroom, an interpreter for one and a half hours each day, and a daily full-time interpreter. (Pl.’s Ex. 35.) The supervisor justified this denial by noting that Smith already had access to two video relay phones in FHR and that the school would accommodate impromptu verbal interpretation by installing a video remote interpreting service[4]“within the next 60 days.” (Id.) This service, however, was not functionally installed until seven months later. (Kovach Depo. at 79.)

Later in November, Smith received more bad news when the principal placed her on the “December List, ” an indication that her contract might not be renewed if her performance did not improve. In a letter explaining this decision, Jochems criticized Smith for insufficient and untimely lesson planning, inadequate student assessment, poor and untimely IEP management, and strained professional relationships with the special education team “that has caused undue stress and hurt feelings.” (Def.’s Ex. 69.) These performance assessments were based on Jochem’s informal observations of Smith’s teaching, the three letters of reprimand, and a formal observation report by Assistant Principal McGraw finding Smith needed improvement in lesson pacing, gradebook planning, promptness, and professional attitude. (Id.; Jochems Depo. at 26-27; McGraw Depo. Ex. 3.)

Smith sent a rebuttal letter noting her disagreement with Jochems’ assessment. Smith contested that her lesson planning was insufficient by stating that “[l]esson plans are available for review at any time.” (Pl.’s Ex. 30.) Next, Smith said Jochems’s finding of inadequate student assessment was based on a communication breakdown involving an interpreter at the September IEP meeting. (Id.) Smith blamed the untimely IEPs on her students’ parents, who timely received the plans but refused to sign them. (Id.) Smith also reiterated that she was not to blame for the incidents prompting the reprimand letters. (Id.) Lastly, Smith complained that she was placed on the December List without the two formal observations and meetings required by school policy. (Id.; Pl.’s Ex. 16 (describing policy).)

After being placed on the December list, Smith was assigned several support mentors. One employee began to work with Smith to improve IEP preparation. (Def.’s SOF ¶ 54.) Another helped with completion of the VGLA binders required under state law. (Id.) A third mentor helped with lesson planning. (Jochems Depo. at 34-35; Def.’s Ex. 74.) Smith also began to meet with Jochems and a representative of the teachers’ association each week to discuss expectations and progress. (Jochems Depo. at 74; Def.’s Ex. 72.)

Despite those intervention efforts, Smith’s performance reviews did not markedly improve. After a formal observation on February 19, 2010, Jochems found Smith needed improvement in several areas, including methods of teaching, student involvement, and management. (Def.’s Ex. 80.) Jochems attached a detailed written report of her observation with a concluding remark that “[t]he pace of the lesson and what little was accomplished in one hour is alarming.” (Id.) At a post-observation conference three days later, Jochems gave Smith a mid-year rating of unsatisfactory. (Def.’s Ex. 81.) Jochems noted that Smith showed “some improvement” in the areas of planning, assessment and record keeping, and timely IEP completion, but also critiqued Smith for deficiencies in developing “a balanced approach to teaching American Sign Language and the Standards of Learning Curriculum at a pace that allows the children to reasonably advance.” (Id.) Jochems also criticized Smith for not developing her students’ reading abilities and creating tension with colleagues. (Id.) Due to these deficiencies, Jochems did not recommend the renewal of Smith’s contract. (Id.) A week later, the Loudoun Schools superintendent informed Smith by letter that he did not plan to recommend her contract be renewed. (Def.’s Ex. 82.)

After receiving the evaluation and the superintendent’s letter, Smith filed a rebuttal to Jochems’s February observations. The main contention of this letter was that Jochems failed to understand the requirements of teaching students to read English and speak ASL in the same lesson. (Pl.’s Ex. 36.) Smith also suggested that the interpreter Jochems was using likely misinterpreted her, leading to misevaluation. (Id.) To refute Jochems’s critique that the students were underperforming, Smith wrote “I am disappointed that the observer failed to understand the children’s progress or ability to comprehend stories . . . . I am evaluated negatively because the children are exhibiting behavior that causes them not to complete their tasks, when in fact, their behaviors demonstrate how much they have progressed in their language.” (Id.)

This brings the timeline to April 2010. Unbeknownst to the FHR administration, Smith submitted a charge of discrimination to the Equal Employment Opportunity Commission (“EEOC”) in January 2010. (Def.’s Ex. 114.) Because of an administrative error, the EEOC did not receive the charge until April 1, 2010. (Id.) Smith filed a second EEOC charge on April 2, 2010, alleging that Defendant terminated her because of her disability. (Def.’s Ex. 115.) These two charges were forwarded to Loudoun Schools’ counsel, the risk management supervisor, and another defense attorney on April 7 and April 12, respectively. (Def.’s SOF ¶¶ 67, 70.) There is no evidence that anyone in the administration at FHR ever knew about the EEOC charges until this lawsuit was filed. (Jochems Depo. at 190.)

Also in April, Principal Jochems, after consultation with the director of special education, sent a letter to the superintendent recommending that Smith be immediately terminated. (Jochems Depo. Ex. 17; Jochems Depo. at 169.) The letter listed many new instances of misconduct that occurred after Smith’s February 2010 evaluation. First, Jochems cited four instances of “[o]ngoing and blatant insubordination.” (Jochems Depo. Ex. 17.) Those incidents included Smith unilaterally deciding to stop attending her required VGLA mentor meetings, suspiciously calling in sick for the same days that a leave request was denied, and several other disputes listed as email conversations. (Id.) Second, the letter accused Smith of creating a “hostile work environment that is impacting the children.” (Id.) This allegation included an incident when Smith allegedly attempted to slam a door in another employee’s face, which a third party witnessed. (Id.; Def.’s Exs. 86, 87.) Additionally, the letter noted that a consulting teacher would no longer work with Smith unless an administrator was present. (Jochems Depo. Ex. 17.) Third, the letter criticized Smith’s failure to meet deadlines, including missing five review and revision meetings, and issues involving the location of her VGLA binders. (Id.) Administrators learned three days after the letter that Smith had taken the binders home, in violation of state law and direct orders. (Jochems Depo. Ex. 69.) Instead of immediately firing Smith, the Superintendent sent a letter to her about two weeks later stating that he would recommend to the school board that her contract not be renewed another year. (Def.’s Ex. 107; Def.’s Ex. 111.)

There is little evidence that Smith disputed any of these allegations in 2010. Smith’s only contemporaneous rebuttal was a doctor’s note explaining her sick ...


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