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    "parties": [
      "SUSAN F. JOHNSON, Plaintiff v. THE TRUSTEES OF DURHAM TECHNICAL COMMUNITY COLLEGE, Defendant"
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        "text": "TIMMONS-GOODSON, Judge.\nThe present case arises out of Susan F. Johnson\u2019s (\u201cplaintiff\u2019) charges of discrimination filed against Durham Technical Community College (\u201cdefendant\u201d or \u201cDurham Tech\u201d) under the Retaliatory Employment Discrimination Act and the Americans with Disabilities Act. Plaintiff appeals adverse rulings that resulted in a denial of her claims.\nPlaintiff taught literacy skills to inmates at the Durham County Jail Annex. She obtained the job by signing a contract with Durham Tech as a part-time instructor of a basic skills course. Pursuant to the contract, plaintiff taught from November of 1993 until mid-February of 1994. Over a two-year period, plaintiff and defendant entered into seven more contracts, for employment periods which lasted for a term of one to three months, depending on the length of the literacy course.\nPlaintiff is unable to walk without crutches as a result of having contracted polio as a child. Prior to moving to North Carolina, she taught Latin in Troop County, Georgia. In 1986, plaintiff applied for and received permanent partial disability from her post as a teacher in Georgia and permanent total disability from the Federal Government.\nIn order to teach her class at the jail annex, plaintiff drove to the jail in her own car, entered on crutches, transferred into a wheelchair she kept at the jail, and taught class from the wheelchair. On 8 June 1994, plaintiff fell from her crutches while opening a security door at the jail, breaking a vertebra in her spine. She filed for workers\u2019 compensation benefits on 10 June 1994 and received payment for medical bills and temporary total disability. On 2 January 1995, plaintiff returned to the jail to teach under her fourth employment contract period. Following her fall, plaintiff used her wheelchair exclusively because walking was more difficult. From her home, plaintiff was lifted in her wheelchair onto a public transport van which drove her to the jail. She then rolled into the jail annex and taught her class from her wheelchair.\nIn February of 1995, plaintiff fell in a bathtub at home and broke her leg. She returned to the jail approximately two weeks later and continued to teach from her wheelchair with her leg in a cast.\nAdministrators at Durham Tech grew increasingly concerned about the possibility plaintiff would suffer another accident at the jail, exposing Durham Tech to liability. Additionally, the administrators were concerned about plaintiffs absences as a result of her injuries and her requirements of accommodations such as having guards at the jail assist her to open and close doors.\nOn 16 June 1995, plaintiff met with Russ Conley (\u201cConley\u201d), the Director of the Adult and Basic Skills program at Durham Tech. Conley proposed that plaintiff teach on campus rather than at the jail at the expiration of her contract. Conley stated that having plaintiff teach at the jail \u201ccould prove to be a liability for Durham Tech.\u201d Conley discussed the possibility of plaintiff teaching students with disabilities and mental illnesses. Plaintiff refused the transfer, stating that she had no special education training. Conley informed plaintiff on 16 June 1995 that she would not be returning to the jail and that he had already hired someone to replace her.\nOn 21 June and 24 June 1995, the Dean of Adult and Continuing Education at Durham Tech, Art Clark, received anonymous phone calls alleging that plaintiff used drugs, gave drugs to inmates, carried a loaded weapon, supplied inmates with bullets, and had sex with inmates. Larry Haverland (\u201cHaverland\u201d), Deputy Director for Inmate Programs, testified that he corroborated some of the anonymous charges against plaintiff on 23 June 1995. Haverland did not know who had conducted the informal investigation of the anonymous charges or whether that individual was reliable. The corroborated charges were that plaintiff had taken contraband into the jail in the form of \u201cpossibly lighters or matches or something\u201d and that plaintiff had visited an inmate at another prison. Haverland testified that a teacher does not violate jail rules by visiting an inmate at another prison. Plaintiff was not asked to answer the charges of the anonymous caller until after she filed charges of discrimination against Durham Tech in the fall of 1995.\nOn 26 June 1995, Conley approached plaintiff at the jail annex and informed her that her position would end on 28 June 1995 when her contract expired. Plaintiff was not offered another teaching contract with Durham Tech.\nDuring the week before trial, Durham Tech identified the anonymous caller as Cynthia Wilson (\u201cWilson\u201d), a nursing aide who had worked in plaintiff\u2019s home. At trial, plaintiff denied Wilson\u2019s charges. Two nursing aides who assisted plaintiff at the same time as Wilson testified that they had never seen any signs of drug use or improper conduct by plaintiff.\nPlaintiff initiated charges of discrimination with the North Carolina Department of Labor under the Retaliatory Employment Discrimination Act and with the Equal Employment Opportunity Commission under the Americans with Disabilities Act. After exhausting her administrative remedies, plaintiff filed a complaint alleging that defendant had removed her from its employment in violation of state and federal law.\nOn 23 December 1997, Judge Henry V. Barnette of the Superior Court, Durham County partially allowed defendant\u2019s Motion for Summary Judgment, dismissing plaintiff\u2019s claims brought pursuant to the North Carolina Retaliatory Employment Discrimination Act, but denying summary judgment as to plaintiff\u2019s cause of action brought pursuant to the Americans with Disabilities Act. Specifically, Judge Barnette denied plaintiff\u2019s Motion for Summary Judgment as to whether plaintiff was a \u201cqualified individual with a disability\u201d for purposes of the Americans with Disabilities Act.\nOn 18 December 1998, Judge Narley L. Cashwell of the Superior Court, Durham County granted defendant\u2019s Motion for Directed Verdict as to plaintiff\u2019s claim under the Americans with Disabilities Act. Plaintiff appeals.\nOn appeal, plaintiff argues that the trial court erred in: (I) granting defendant\u2019s Motion for Summary Judgment as to plaintiff\u2019s claims under the Retaliatory Employment Discrimination Act; and (II) directing a verdict against plaintiff as to her claims under the Americans with Disabilities Act.\nI. RETALIATORY DISCRIMINATION ACT CLAIM\nBy her first assignment of error, plaintiff argues that the trial court erred in granting defendant\u2019s Motion for Summary Judgment as to plaintiff\u2019s claims under the Retaliatory Employment Discrimination Act. We cannot agree.\nSummary judgment is proper where there is no genuine issue as to any material fact. Alltop v. Penney Co., 10 N.C. App. 692, 179 S.E.2d 885 (1971). An issue is genuine where it is supported by substantial evidence. Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971). A genuine issue of material fact is of such a nature as to affect the outcome of the action. Smith v. Smith, 65 N.C. App. 139, 308 S.E.2d 504 (1983). The moving party bears the burden of establishing the lack of a triable issue of fact. Pridgen v. Hughes, 9 N.C. App. 635, 177 S.E.2d 425 (1970). The motion must be denied where the non-moving party shows an actual dispute as to one or more material issues. Page v. Sloan, 281 N.C. 697, 190 S.E.2d 189 (1972). As a general principle, summary judgment is a drastic remedy which must be used cautiously so that no party is deprived of trial on a disputed factual issue. Billings v. Harris Co., 27 N.C. App. 689, 220 S.E.2d 361 (1975), aff\u2019d, 290 N.C. 502, 226 S.E.2d 321 (1976).\nThe North Carolina Retaliatory Employment Discrimination Act (\u201cREDA\u201d), enacted in 1992, prohibits discrimination against an employee who has filed a workers\u2019 compensation claim. N.C. Gen. Stat. \u00a7 95-240, et. seq. (1999). In pertinent part, the Act provides:\n(a) No person shall discriminate or take any retaliatory action against an employee because the employee in good faith does or threatens to do any of the following:\n(1) File a claim or complaint, initiate any inquiry, investigation, inspection, proceeding or other action, or testify or provide information to any person with respect to any of the following:\na. Chapter 97 of the General Statutes.\nN.C. Gen. Stat. \u00a7 95-241 (1999).\nREDA replaced North Carolina General Statutes section 97-6.1, the purpose of which was to promote an open environment in which employees could pursue remedies under the Workers\u2019 Compensation Act without fear of retaliation from their employers. Abels v. Renfro Corp., 108 N.C. App. 135, 423 S.E.2d 479 (1992), aff\u2019d in part, rev\u2019d in part, 335 N.C. 209, 436 S.E.2d 822 (1993). The former law merely protected employees against discharge and demotion. N.C. Gen. Stat. \u00a7 97-6.1(a) (repealed 1992). By enacting REDA, however, the General Assembly expanded the definition of retaliation to include \u201cthe discharge, suspension, demotion, retaliatory relocation of an employee, or other adverse employment action taken against an employee in the terms, conditions, privileges, and benefits of employment.\u201d N.C. Gen. Stat. \u00a7 95-240(2) (1999).\nIn a claim brought pursuant to the former provision, section 97-6.1(a), this Court stated that an employee bears the burden of proof in retaliatory discharge actions. Morgan v. Musselwhite, 101 N.C. App. 390, 399 S.E.2d 151 (1991). \u201cThe statute does not prohibit all discharges of employees who are involved in a workers\u2019 compensation claim, it only prohibits those discharges made because the employee exercises his compensation rights.\u201d Id. at 393, 399 S.E.2d at 153 (citation omitted). Furthermore, our appellate courts indicated in applying the former provision that a plaintiff fails to make out a case of retaliatory action where there is no close temporal connection between the filing of the claim and the alleged retaliatory act. See Shaffner v. Westinghouse Electric Corp., 101 N.C. App. 213, 398 S.E.2d 657 (1990); Morgan, 101 N.C. App. 390, 399 S.E.2d 151.\nAs a preliminary matter, we must address the issue of whether the failure to renew an employment contract may qualify as a retaliatory action in violation of REDA. As stated above, in enacting REDA, the General Assembly broadly defined retaliatory action as \u201cthe discharge, suspension, demotion, retaliatory relocation of an employee, or other adverse employment action N.C.G.S. \u00a7 95-240(2) (emphasis added). As the failure to renew an employee\u2019s contract produces the adverse result of terminating her employment, the plain language of the statute suggests that non-renewal of an employment contract falls within the scope of REDA. Furthermore, while our appellate courts have not spoken on this issue, we find persuasive authority from other jurisdictions holding that the failure to renew an employment contract may constitute actionable conduct. See, e.g., Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 50 L. Ed. 2d 471 (1977); Perry v. Sinderman, 408 U.S. 593, 33 L. Ed. 2d 570 (1972); Kramer v. Logan County School District No. R-l, 157 F.3d 620 (8th Cir. 1998); Smith v. Borough of Wilkinsburg, 147 F.3d 272 (3d Cir. 1998); Payne v. McLemore\u2019s Wholesale & Retail Stores, 654 F.2d 1130, reh\u2019g denied, 660 F.2d 497 (5th Cir. 1981); Daly v. Exxon Corp., 63 Cal. Rptr. 2d 727 (Cal. Ct. App. 1997). We therefore hold that the failure to renew an employment contract constitutes an adverse employment action for purposes of REDA.\nWe now address plaintiff\u2019s argument that a genuine issue of material fact existed as to whether defendant took retaliatory action against her because she filed a workers\u2019 compensation claim or threatened to do so. See N.C.G.S. \u00a7 95-241. In the present case, plaintiff filed a workers\u2019 compensation claim on 10 June 1994 after she broke a vertebra in her spine while opening a security door at the jail annex. Defendant entered into three new contracts with plaintiff after she filed the claim. Plaintiffs final contract with Durham Tech expired on 28 June 1995, over a year after she filed for compensation.\nPlaintiff argues that she was terminated after a second injury similar to the employee in Abels, 335 N.C. 209, 436 S.E.2d 822, and that a discharge following a second injury is sufficient to show that an employee was discharged to prevent the filing of a workers\u2019 compensation claim. However, plaintiffs second injury occurred in the home when she fell in a bathtub on 11 February 1995 and broke her leg. Durham Tech would not have anticipated a workers\u2019 compensation claim based on plaintiff\u2019s second injury as it was not work related. In contrast to Abel, the circumstantial evidence in the case sub judice does not suggest that defendant failed to renew plaintiff\u2019s contract in order to forestall the filing of a workers\u2019 compensation claim. Defendant entered into three new contracts with plaintiff after she filed a workers\u2019 compensation claim, and defendant\u2019s refusal to renew plaintiff\u2019s contract was not closely temporally related to her workers\u2019 compensation claim in that it took place over a year after she filed for compensation. See Shaffner, 101 N.C. App. 213, 398 S.E.2d 657.\nWe conclude that there was no genuine issue of material fact as to whether defendant took retaliatory action against plaintiff because she filed a workers\u2019 compensation claim or threatened to file one. As such, we hold that the trial court did not err in granting defendant\u2019s Motion for Summary Judgment on plaintiff\u2019s claims under the REDA.\nII. AMERICANS WITH DISABILITIES ACT CLAIM\nBy her second assignment of error, plaintiff argues that the trial court erred in directing a verdict against her on her claims under the Americans with Disabilities Act. We agree.\nIn deciding whether to direct a verdict at the close of all of the evidence, \u201cthe trial court must determine whether the evidence, when considered in the light most favorable to the nonmovant, is sufficient to take the case to the jury.\u201d Southern Bell Telephone and Telegraph Co. v. West, 100 N.C. App. 668, 670, 397 S.E.2d 765, 766 (1990), (citations omitted), aff\u2019d, 328 N.C. 566, 402 S.E.2d 409 (1991) (citations omitted). If there is more than a scintilla to support a plaintiff\u2019s case, the motion must be denied. Edwards v. West, 128 N.C. App. 570, 495 S.E.2d 920, cert. denied, 348 N.C. 282, 501 S.E.2d 918 (1998). \u201cWhere the question of granting a directed verdict is a close one, the better practice is for the trial judge to reserve his decision on the motion and submit the case to the jury.\u201d Id. at 573, 495 S.E.2d at 923 (citation omitted).\nThe Americans with Disabilities Act (\u201cADA\u201d), 42 U.S.C. \u00a7 12101, et seq. (1994), provides in pertinent part:\nNo covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.\n42 U.S.C. \u00a7 12112(a) (1994). To prevail on an ADA claim, the plaintiff must prove that: (1) she has a disability as defined by the ADA; (2) she is qualified for the job; and (3) she was unlawfully discriminated against by an employer because of her disability. Martinson v. Kinney Shoe Corp., 104 F.3d 683 (4th Cir. 1997).\nUnder the ADA, the term \u201cdisability\u201d is defined as \u201ca physical. . . impairment that substantially limits one or more of the major life activities of such individual[.]\u201d 42 U.S.C. \u00a7 12102(2)(A) (1994). In the present case, plaintiff contracted polio at the age of four, and her limited movement and mobility required the use of a wheelchair and crutches since the onset of the disease. At trial, plaintiffs physician testified that plaintiffs major life activity of walking was substantially limited by her condition. Based upon these and other pertinent facts relating to plaintiffs limitations, we conclude that plaintiff presented sufficient evidence indicating that she was disabled for purposes of the ADA.\nOnly a \u201cqualified individual with a disability\u201d may prevail on a discrimination claim under the ADA. \u201cThe term \u2018qualified individual with a disability\u2019 means an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.\u201d 42 U.S.C. \u00a7 12111(8) (1994). \u201cEssential functions\u201d of the job are the fundamental job duties of the person with the disability \u201cthat bear more than a marginal relationship to the job at issue.\u201d Chandler v. City of Dallas, 2 F.3d 1385, 1393 (5th Cir. 1993) (citation omitted).\nThe term \u201creasonable accommodation\u201d may include\u2014\n(A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and\n(B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modification of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.\n42 U.S.C. \u00a7 12111(9).\nIn the present case, defendant argues that plaintiff was not a qualified individual in that Haverland, inmate programs director, banned plaintiff from entering the jail after he confirmed anonymous allegations of plaintiff\u2019s illegal conduct. According to defendant, plaintiff was therefore unable to perform the essential function of her job of teaching at the jail. We cannot agree.\nDurham Tech received the anonymous calls on 21 June and 24 June 1995. Haverland confirmed the allegations of the first call to his satisfaction on 23 June 1995. However, Conley informed plaintiff on 16 June 1995 that she would not be returning to the jail and that he had already replaced her. As such, construing the evidence in the light most favorable to the plaintiff, reasonable fact-finders could conclude that defendant had decided not to renew plaintiffs contract before the anonymous phone calls were received and before plaintiff was banned from the jail. See Chardon v. Fernandez, 454 U.S. 6, 70 L. Ed. 2d 6 (1981) (holding that discriminatory act occurs on the date an employee is notified of an impending discharge rather than on the date employment ends). An employer may not rely on evidence of employee misconduct which is acquired after the employment decision in question to defend the employment decision. McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 130 L. Ed. 2d 852 (1995). As a reasonable juror could conclude that the anonymous phone calls were after-acquired evidence, defendant\u2019s argument that plaintiff was not a qualified individual because she was banned from the jail must fail.\nDefendant further argues that plaintiff was not a \u201cqualified individual\u201d because her \u201cpoor attendance made her nonqualified to teach in the jail.\u201d Before addressing defendant\u2019s specific issue, we note that by all accounts, plaintiff was an excellent teacher who was able to carry out the instructional functions of her job using her wheelchair. Certainly, plaintiff\u2019s qualifications as an instructor are not at issue here. However, this does not end our inquiry.\n\u201cIn addition to possessing the skills necessary to perform the job in question, an employee must be willing and able to demonstrate these skills by coming to work on a regular basis.\u201d Tyndall v. National Educ. Centers, 31 F.3d 209, 213 (4th Cir. 1994); see also Waggoner v. Olin Corp., 169 F.3d 481 (7th Cir. 1999) (holding that regular attendance was an essential function); Carr v. Reno, 23 F.3d 525 (D.C. Cir. 1994) (holding same in relation to federal Rehabilitation Act); Jackson v. Veterans Admin., 22 F.3d 277, reh\u2019g and suggestion for reh\u2019g en banc denied, 30 F.3d 1500 (11th Cir. 1994) (same). Accordingly, \u201ca regular and reliable level of attendance is a necessary element of most jobs.\u201d Tyndall, 31 F.3d at 213 (citations omitted).\n[I]t is not the absence itself but rather the excessive frequency of an employee\u2019s absences in relation to that employee\u2019s job responsibility that may lead to a finding that an employee is unable to perform the duties of [her] job. Consideration of the degree of excessiveness is a factual issue well suited to a jury determination.\nHaschmann v. Time Warner Entertainment Co., L.P., 151 F.3d 591, 602 (7th Cir. 1998).\nPlaintiff entered several contracts with Durham Tech for five periods of employment beginning in November 1993. Plaintiff taught through the first two periods, ending May 1994, without incident. For the third period, plaintiff\u2019s contract specified that she was to teach for thirteen weeks, beginning 30 May 1994 and ending 26 August 1994. However, on 8 June 1994, only a week after beginning the third contract period, plaintiff fell at the jail and, as a result, was unable to complete the third employment period.\nFor the fourth employment period, plaintiff was to teach twelve weeks, beginning 8 January 1995 and ending 22 March 1995. However, following her fall at home in February, plaintiff missed approximately two weeks of the twelve-week period. Plaintiff, with the assistance of a wheelchair, taught the entire fifth employment period without incident.\nDean Clark testified that good and dependable attendance was an important function for instructors affiliated with Durham Tech, especially in incarcerated, \u201coff site\u201d situations. Clark explained, \u201c[T]o get substitute teachers who are pre-qualified, for example, who have been cleared, oriented, etcetera, who are suitable for teaching in an incarcerated environment, is a problematic matter.\u201d Clark further testified that plaintiff\u2019s attendance record was a concern in the decision to offer her a transfer.\nTo support its argument that plaintiffs attendance record did not support a finding that plaintiff was qualified, defendant cites Tyndall, 31 F.3d 209. However, the facts of Tyndall are distinguishable from the facts sub judice. In Tyndall, the Fourth Circuit found an ADA claimant was not qualified for her position as a business school instructor based upon her attendance record. The employee missed a total of forty days of a seven-month work period. With the exception of ten days, the employee\u2019s absences were unrelated to her disability.\nPrior to returning to work as scheduled following almost a month of leave, the plaintiff employee requested yet another extended absence. The plaintiff\u2019s employer in Tyndall informed the employee that she could return to work as scheduled without penalty. However, the employer would not agree to yet another extended absence. The employer explained that if the employee was unable to return to work as scheduled, she would miss the beginning of an instructional cycle for a third time. The employer further explained that students and other teachers had complained about the employee\u2019s absence and that any further period of absence would disrupt the school\u2019s operation.\nIn the instant case, plaintiff was able to teach three out of five employment periods without incident and one employment period in which she missed only two weeks out of twelve weeks of classes. It was only during one employment period that plaintiff missed a significant number of classes. Unlike the employee in Tyndall, plaintiff\u2019s absences were due solely to complications related to her disability and did not establish a clear pattern of absenteeism. Furthermore, following her significant period of absence during the third employment period, defendant did not express that the extended absence was disruptive or excessive and even offered her two additional periods of employment. Finally, unlike in Tyndall, plaintiff\u2019s employment relationship with defendant did not end solely because of excessive absenteeism.\nFederal circuit courts that have found employees unqualified because of their attendance records generally do so based on more egregious absenteeism than existed in the instant case. See, e.g., Waggoner, 169 F.3d 481 (finding disabled employee unqualified where she was on medical leave for five and a half months and further missed work or was late forty times during a twenty-month period of employment); Halperin v. Abacus Technology Corp., 128 F.3d 191 (4th Cir. 1997) (finding employee unqualified under ADA where he missed forty-six days of a six-month employment period and further expressed he was unable to work for an additional five months at the time of his termination); Carr, 23 F.3d 525 (finding employee unqualified under similar federal Rehabilitation Act provision where employee missed months at a time over a period of several years, did not explain some of the absences, and did not improve her attendance record even after employer\u2019s reasonable accommodations). But cf. Jackson, 22 F.3d 277 (finding temporary employee unqualified under Rehabilitation Act where employee missed six days out of a two and one-half month employment period).\nWhile we recognize that determining whether plaintiff was a \u201cqualified individual\u201d is a close question, there are arguments which support a finding that plaintiffs absences were excessive in light of her unique employment situation \u2014 substitute teachers were hard to find, the classes were only for a short period of time and thus, any absence may be significant, etc. However, viewing the evidence in the light most favorable to the plaintiff, we conclude that a reasonable jury could find, based upon all of the evidence, that plaintiff was qualified even in light of her attendance record.\nFinally, the ADA specifies that no employer \u201cshall discriminate . . . because of the disability of [an] individual.\u201d 42 U.S.C. \u00a7 12112(a) (emphasis added). The term \u201cdiscriminate\u201d includes \u201climiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of such applicant or employee because of the disability of such applicant or employee,\u201d 42 U.S.C. \u00a7 12112(b)(1), as well as \u201cdenying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant^]\u201d 42 U.S.C. \u00a7 12112(b)(5)(B).\nWith the exception of the Sixth Circuit, all federal circuit courts that have addressed this issue in a published opinion have found that \u201cbecause of\u2019 does not mean solely because of; rather, to establish a violation of the ADA, a plaintiff need only prove that discrimination based on her disability was a determining or motivating factor in an adverse employment action. Baird ex rel. Baird v. Rose, 192 F.3d 462 (4th Cir. 1999); Butler v. City of Prairie Village, Kan., 172 F.3d 736 (10th Cir. 1999); Kiel v. Select Artificials, Inc., 169 F.3d 1131 (8th Cir.), cert. denied, 528 U.S. 818, 145 L. Ed. 2d 51 (1999); Foster v. Arthur Andersen, LLP, 168 F.3d 1029 (7th Cir. 1999); Walton v. Mental Health Assoc., 168 F.3d 661 (3d Cir. 1999); Newberry v. East Texas State University, 161 F.3d 276 (5th Cir. 1998); Feliciano v. State of R.I., 160 F.3d 780 (1st Cir. 1998); McNely v. Ocala Star-Banner Corp., 99 F.3d 1068 (11th Cir. 1996). But see Brohm v. JH Properties, Inc., 149 F.3d 517 (6th Cir. 1998). In the ease sub judice, the trial court erroneously directed a verdict in favor of Durham Tech because plaintiff had failed to prove that she was terminated based solely upon her disability. Applying the correct standard, we conclude that a reasonable jury could find plaintiffs disability was at least a motivating or determinative factor in her discharge. Defendant admitted to plaintiff, among other things, that her presence at the jail and the possibility that she would suffer another fall \u201ccould prove to be a liability for Durham Tech.\u201d Certainly, defendant presented evidence of other concerns considered in the decision, such as plaintiff\u2019s attendance record and her safety. However, to recover, plaintiff need not prove that her disability was the sole reason defendant took the adverse employment action, but only that it was a motivating factor. As such, the court erred in directing a verdict based on this issue.\nDefendant contends that even if the \u201cdetermining factor\u201d test is applicable to the instance case, it was still entitled to a directed verdict. Defendant argues that there is a \u201cpowerful presumption\u201d of non-discrimination because the same person who hired plaintiff, fired her. We must disagree.\nIn Proud v. Stone, 945 F.2d 796, 797-98 (4th Cir. 1991), the Fourth Circuit held, in an age discrimination case, that where the employer advances a legitimate, nondiscriminatory reason for its adverse action,\nthe hirer and the firer are the same individual!,] and the termination of employment occurs within a relatively short time span following the hiring, a strong inference exists that discrimination was not a determining factor for the adverse action taken by the employer.\nThe \u201cProud inference\u201d has been extended to a variety of employment discrimination cases, including those arising under the ADA. See, e.g., Tyndall, 31 F.3d 209 (applying Proud to an ADA case).\nIn the instance case, the evidence was sufficient to indicate that the same person who hired plaintiff did not fire her. Conley, the person who hired plaintiff, testified that at some point during the Spring of 1995, Dean Clark encouraged him to consider reassigning plaintiff to a location other than the jail. Conley further testified that Clark asked him to consider a reassignment after discussing it with Durham Tech\u2019s chief financial officer, Ed Moore. Conley stated that prior to his conversation with Clark, he was not concerned about having plaintiff teach at the jail.\nWhen asked specifically who made the decision to not reassign plaintiff to the jail, Conley first testified that it was a consensus of Clark, another administrator, and himself. However, further testimony revealed that in his deposition, Conley stated that prior to informing plaintiff she would not be reassigned to the jail, Clark had already instructed Conley not to reassign plaintiff to her present position. As such, the evidence, construed in the light most favorable to the plaintiff, demonstrates that the same person did not hire and fire plaintiff, and therefore, defendant was not entitled to an inference of nondiscrimination. Accordingly, we hold that the court erred in directing a verdict for defendant with regard to plaintiffs claim under the ADA.\nFor the reasons stated herein, we affirm the trial court\u2019s order granting defendant\u2019s summary judgment motion based on plaintiff\u2019s state law claim of retaliatory discharge. Furthermore, we reverse the decision of the trial court directing a verdict based on plaintiff\u2019s ADA claim and remand for further proceedings consistent with this opinion.\nAffirmed in part, reversed in part.\nJudges GREENE and WALKER concur.",
        "type": "majority",
        "author": "TIMMONS-GOODSON, Judge."
      }
    ],
    "attorneys": [
      "Glenn, Mills & Fisher, P.A., by Stewart W. Fisher and Caitlyn Fulghum, for plaintiff-appellant.",
      "Haywood, Denny & Miller, L.L.P., by George W. Miller, Jr. and George W. Miller, III, for defendant-appellee.",
      "Patterson, Harkavy & Lawrence, L.L.P., by Burton Craige, for the North Carolina Academy of Trial Lawyers and the American Civil Liberties Union of North Carolina Legal Foundation, amici curiae."
    ],
    "corrections": "",
    "head_matter": "SUSAN F. JOHNSON, Plaintiff v. THE TRUSTEES OF DURHAM TECHNICAL COMMUNITY COLLEGE, Defendant\nNo. COA99-676\n(Filed 29 August 2000)\n1. Employer and Employee\u2014 retaliatory discharge \u2014 failure to renew employment contract\nThe failure to renew an employment contract qualifies as a retaliatory action in violation of the Retaliatory Employment Discrimination Act under N.C.G.S. \u00a7 95-240(2) because it constitutes an adverse employment action.\n2. Employer and Employee\u2014 retaliatory discharge \u2014 employee filed workers\u2019 compensation claim\nThe trial court did not err by granting summary judgment in favor of defendant employer as to plaintiff employee\u2019s claims that she was discharged by her employer in retaliation for filing a workers\u2019 compensation claim, because: (1) the evidence does not suggest that defendant failed to renew plaintiff\u2019s contract in order to forestall the filing of another workers\u2019 compensation claim since plaintiff\u2019s second injury was not work-related; and (2) defendant entered into three additional contracts with plaintiff after she filed a workers\u2019 compensation claim, and defendant\u2019s refusal to renew plaintiff\u2019s contract was not close in time to her workers\u2019 compensation claim.\n3. Disabilities\u2014 qualified individual \u2014 teacher at a jail\u2014 wheelchair \u2014 banned from jail \u2014 anonymous allegations of illegal misconduct\nThe trial court erred by directing verdict on claims under the Americans with Disabilities Act against plaintiff employee who sat in a wheelchair and taught literary skills to inmates at a jail because viewing the evidence in the light most favorable to plaintiff reveals that plaintiff was a qualified individual under 42 U.S.C. \u00a7 12111(9) to teach at the jail, even though plaintiff was banned from the jail after the program director confirmed anonymous allegations of plaintiff\u2019s illegal conduct, since: (1) defendant decided not to renew plaintiff\u2019s contract before the anonymous phone calls of plaintiff\u2019s misconduct were received and before plaintiff was banned from the jail; and (2) an employer may not rely on evidence of employee misconduct which is acquired after the employment decision in question to defend the employment decision.\n4. Disabilities\u2014 qualified individual \u2014 teacher at a jail\u2014 wheelchair \u2014 poor attendance\nThe trial court erred by directing verdict on claims under the Americans with Disabilities Act against plaintiff employee who sat in a wheelchair and taught literary skills to inmates at a jail because viewing the evidence in the light most favorable to plaintiff reveals that plaintiff was a qualified individual under 42 U.S.C. \u00a7 12111(9) to teach at the jail, even though defendant alleges that plaintiff had poor attendance at her job, since: (1) plaintiff was able to teach three out of five employment periods without incident, and one employment period in which she missed only two weeks out of twelve weeks of classes; (2) it was only during one employment period that plaintiff missed a significant number of classes; (3) plaintiffs absences were due solely to complications related to her disability and did not establish a clear pattern of absenteeism; (4) following her significant period of absence during the third employment period, defendant did not express that the extended absence was disruptive or excessive and even offered her two additional periods of employment; and (5) plaintiffs employment relationship with defendant did not end solely because of excessive absenteeism.\n5. Disabilities\u2014 teacher at a jail \u2014 wheelchair\u2014no presumption of non-discrimination for employer\nDefendant employer was not entitled to a directed verdict on plaintiff employee\u2019s claims under the Americans with Disabilities Act based on the presumption of non-discrimination that arises when the same person who hired plaintiff also fired her.\nAppeal by plaintiff from judgment entered 23 December 1997 by Judge Henry V. Barnette and judgment entered 18 December 1998 by Judge Narley L. Cashwell in Superior Court, Durham County. Heard in the Court of Appeals 14 March 2000.\nGlenn, Mills & Fisher, P.A., by Stewart W. Fisher and Caitlyn Fulghum, for plaintiff-appellant.\nHaywood, Denny & Miller, L.L.P., by George W. Miller, Jr. and George W. Miller, III, for defendant-appellee.\nPatterson, Harkavy & Lawrence, L.L.P., by Burton Craige, for the North Carolina Academy of Trial Lawyers and the American Civil Liberties Union of North Carolina Legal Foundation, amici curiae."
  },
  "file_name": "0676-01",
  "first_page_order": 708,
  "last_page_order": 722
}
