Employment Law Daily Chronically late Muslim teacher with ADHD cannot claim religious or disability discrimination
Thursday, December 7, 2017

Chronically late Muslim teacher with ADHD cannot claim religious or disability discrimination

By Harold S. Berman J.D.

A Muslim teacher with ADHD who was disciplined for tardiness after she began wearing a headscarf, was assigned large classes with problematic students, and ultimately resigned, could not prevail on her religious and disability discrimination, retaliation, and constructive discharge claims, ruled the First Circuit. The court affirmed summary judgment in favor of her employer, finding its reasons for disciplining her and assigning classes based on student needs were not pretextual. The teacher produced no evidence that the school retaliated against her because she filed EEOC charges, and her working conditions were not unbearable such that a reasonable person would have resigned (Cherkaoui v. City of Quincy, December 4, 2017, Torruella, J.).

The employee began working for the city as a teacher in 1998. She worked mostly part-time, and never was disciplined before 2009. Having previously converted to Islam, she began wearing a headscarf to work, for religious reasons, in 2009. In the spring, she requested to teach full-time the following school year. The city offered her a split assignment between two schools teaching English. However, it changed her assignment on short notice to include a Spanish class, which she had not taught in many years.

Tardiness. The teacher alleged she had insufficient time to travel between schools and, consequently, she was late several times. She received warnings and ultimately a suspension. After complaining, she was given an additional 10 minutes to travel between the schools. Nevertheless, she was again late and received warnings in October and December. On December 22, the Superintendent sent her a letter of intent to suspend her for her tardiness and for inappropriate conduct during meetings to discuss her tardiness.

On December 23, she notified HR for the first time that she had ADHD, and requested reasonable accommodations. On January 7, 2010, the city suspended her for three days. Two days later she filed an EEOC charge alleging religious discrimination and retaliation.

Sick leave. The teacher did not return to work for the remainder of the school year because of her ADHD, exhausting her sick leave. After she requested extended leave, the city asked her to undergo a medical exam to substantiate her disability, as provided under the union contract. The exam affirmed her disability, and she was granted extended leave. She amended her EEOC charge to include retaliation for being required to undergo the exam.

The teacher returned in 2010-2011, after the city granted most of her accommodation requests, limiting her teaching to one school, and providing her assignments a month before the school year. In 2011-2012, she was required to incorporate science into her English curriculum, in accordance with school educational practice, although she felt uncomfortable because she lacked a science background.

Investigation. In June 2013, following run-ins with coworkers which she felt went unaddressed by the principal, the teacher wrote to express her concerns, and referred to the “ongoing overt and subtle discrimination as well as hostility” she experienced. Her letter prompted an investigation by the city. She filed another EEOC discrimination charge that summer.

In mid-September 2013, the teacher went on sick leave for stress from coworker interactions. The union president met with the principal to discuss the teacher’s concerns about her large class size of low fluency and mixed-grade students, but did not discuss the other concerns contained in the teacher’s letter. The principal agreed to try to include students from only one grade.

In October, the teacher reiterated her discrimination claims to HR. That month, the city responded to the teacher’s EEOC charge, noting that its investigation of her claims found no evidence of harassment. The teacher then notified HR that she was still on sick leave, and needed to know how the hostile environment would be remedied before she returned. After HR responded that the investigation produced no evidence of harassment, the teacher requested transfer to a part-time position at another school. The transfer was denied in accordance with union policy because it was made outside the required time frame and there were no vacancies.

On October 28, 2013, the teacher resigned. She sued in 2014, alleging discrimination, retaliation, and constructive discharge. The district court granted summary judgment and she appealed.

Discrimination. The appeals court affirmed. As to the discrimination charge, the teacher did not identify any incident that could be considered an adverse employment action, nor whether the incidents were based on her religion or disability. Even if some of the school’s actions arguably changed the conditions of her employment, she could not show that the city’s non-discriminatory explanations were pretextual. The city’s disciplinary actions were in response to the teacher’s tardiness, and other tardy teachers were similarly disciplined. Her large class size, mixed student population, and requirement to incorporate science, resulted from student needs, qualifications of the teacher pool, and budget constraints. The city denied her transfer request because she did not follow procedure and there were no vacancies. That she only experienced disciplinary issues after she began wearing a headscarf was, alone, insufficient, to show pretext.

Retaliation. Summary judgment also was affirmed against the retaliation claim for lack of causation. Although filing the EEOC charges was protected conduct, only some of the alleged adverse actions occurred after they were filed. Even if the city’s post-EEOC actions could be considered adverse, she provided no evidence of a causal link, relying solely on temporal proximity. However, most of the alleged adverse actions occurred years after she filed her first EEOC charge, and the city produced legitimate, non-retaliatory reasons for her assignment and classroom conditions, which were based on student need and teacher availability. Nor was denial of her transfer requests related to her protected conduct. The only alleged adverse employment action with close temporal proximity to her first EEOC charge was the city’s requirement that she undergo a medical exam. However, the union contract entitled the city to request the exam to substantiate her sick leave request, and it approved her request after she underwent the exam.

Constructive discharge. The Court of Appeals also affirmed summary judgment against the teacher’s constructive discharge claim. Her working conditions had not reached a level of unbearableness such that a reasonable person would have resigned. Although the teacher encountered several uncomfortable workplace situations, there was no pattern of unusually aggravating work conditions. To the contrary, the city investigated her allegations of discrimination, and accommodated many of her requests.

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