Lowe v. Independent School District No. 1

363 F. App'x 548
Court of Appeals for the Tenth Circuit·Decided January 25, 2010·No. 08-6231·Unpublished·Cited by 9 cases

Opinions

ORDER AND JUDGMENT*

WADE BRORBY, Senior Circuit Judge.

I. INTRODUCTION

Plaintiff Terrianne Lowe filed suit against her former employer, Independent School District No. 1 of Logan County, Oklahoma (“the District”), alleging that it failed to reasonably accommodate her post-polio condition, in violation of the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 (“ADA”).1 The district [550] court granted summary judgment in favor of the District, and Ms. Lowe appeals. This court has jurisdiction under 28 U.S.C. § 1291. We reverse.

II. BACKGROUND

Ms. Lowe had polio as a child and, as a result, has worn leg braces for most of her life and has had several knee replacements. She has been advised by her physician that she will have to be in a wheelchair at some point and that walking and standing for long periods will accelerate the deterioration of her leg muscles.

Ms. Lowe was certified to teach a variety of science courses for grades seven through twelve and had experience as a classroom teacher. Since the 1988-89 school year, Ms. Lowe had been employed by the District as a high school counselor. Because a counselor is a “teacher” under state law, Ms. Lowe was employed under a standard teacher’s contract with counseling duties added pursuant to a separate “extra duty” contract. Ms. Lowe’s counselor position was sedentary and required no accommodation for her disability.

In the fall of 2005, as a result of complaints from parents and-staff about Ms. Lowe’s performance as a counselor at Guthrie High School, Terry Simpson, the District Superintendent, determined that Ms. Lowe’s extra-duty contract as a counselor would not be renewed for the 2006-07 school year and that Ms. Lowe would, instead, be reassigned as a classroom teacher. Ms. Lowe was informed of this decision in March 2006 by Jan Chadwick, the principal of Guthrie High School. Ms. Lowe understood that her base salary as a teacher would not be affected by the reassignment but that she would lose the approximately $5700.00 in additional income she earned under the extra-duty contract as a counselor.

In May 2006, the temporary teaching contract of Mary Rhinehart expired and was not renewed by the District. Ms. Rhinehart had taught physical science at the high school in one of the smallest and most crowded classrooms that, as then configured, would not accommodate a walker or a wheelchair in the aisles between the lab tables. The physical science class, and all other science classes at the high school, were laboratory classes. The physical science class was the only opening for a science teacher at the high school for the 2006-07 school year.

Ms. Lowe, for reasons explained below, eventually came to understand that she would be reassigned to teach physical science in Ms. Rhinehart’s small, crowded classroom. In order to plan for that contingency, Ms. Lowe met with Lori Allen, head of the Guthrie High School science department, to share with Ms. Allen her concerns about the reassignment in light of her disability. Ms. Allen did not question the need for such a meeting because she had learned from a school board member that Ms. Rhinehart was not retained in order to open up a teaching slot for Ms. Lowe in Ms. Rhinehart’s former classroom. Together, Ms. Lowe and Ms. Allen compiled a list of accommodations they believed necessary in order for Ms. Lowe to teach physical science in the laboratory science classroom formerly used by Ms. Rhinehart. Before the end of the 2005-06 school year, Ms. Lowe presented the list of accommodations and a letter from her physician to principal Chadwick, her immediate supervisor, to Don Bowman, the District’s human resources director, and to Superintendent Simpson. Shortly thereafter, Ms. Chadwick was told by Don Bowman that no accommodation would be made and that Ms. Lowe should be as[551] signed to a non-laboratory science class.2 Ms. Chadwick passed this information along to Ms. Lowe.

By August 2006, Ms. Lowe had heard nothing from the District regarding her request for accommodation, other than the message from Mr. Bowman, relayed by Ms. Chadwick, that no accommodation would be made. Two weeks before school was to begin, Mary Pratz, an advocacy specialist and representative with the Oklahoma Education Association, set up a meeting attended by Superintendent Simpson, Ms. Lowe, Michelle Redus, president of the Guthrie Association of Classroom Teachers, and herself. The purpose of the meeting was to discuss the accommodations Ms. Lowe believed she would need in order to teach physical science in Ms. Rhinehart’s former classroom. It is clear that, at the time of the August meeting, Ms. Lowe believed that such would be her assignment come the start of the new school year.

As we will discuss below, there is significant disagreement among those present at the August meeting as to what actually was said. One thing is clear: Ms. Lowe was dissatisfied with the result of the meeting and submitted her resignation two days later. She then filed charges with the EEOC and later retired from the District’s employ.

Ms. Lowe eventually sued the District claiming violation of the ADA with regard to the reassignment, and failure to accommodate regarding the new teaching position. The district court granted summary judgment to the District on both claims. The district court determined that Ms. Lowe failed to show pretext in the District’s proffered reason for her reassignment, a conclusion unchallenged on appeal. With regard to the failure-to-accommodate claim, the district court held that the claim failed because it was based only on Ms. Lowe’s speculation as to where she would be assigned when school finally began. The court further concluded that “[because plaintiff resigned before classes started, she cannot show that the defendant failed to accommodate her disability.” ApltApp. at 491. On appeal, Ms. Lowe argues that the district court erred in granting summary judgment to the District on her failure-to-accommodate claim, and that she was constructively discharged as a result of the District’s violation of the ADA.

III. DISCUSSION

“We review the district court’s grant of summary judgment de novo.” Smith v. Midland Brake, Inc., 180 F.3d 1154, 1159 (10th Cir.1999) (en banc). Summary judgment should be granted “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). We review the evidence in the light most favorable to Ms. Lowe as the non-movant. See Midland Brake, 180 F.3d at 1160.

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Lowe v. Independent School District No. 1, 363 F. App'x 548 (10th Cir. 2010).

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