Anchorage School District v. Alaska State Commission, 101211 AKHRC, 3AN-10-10122 CI

Docket Nº:3AN-10-10122 CI
Opinion Judge:Hon. Patrick J. McKay Judge of the Superior Court
Party Name:ANCHORAGE SCHOOL DISTRICT, Appellant, v. ALASKA STATE COMMISSION for HUMAN RIGHTS; VILMA ANDERSON, Appellees.
Case Date:October 12, 2011
Court:Superior Court of Alaska
 
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ANCHORAGE SCHOOL DISTRICT, Appellant,

v.

ALASKA STATE COMMISSION for HUMAN RIGHTS; VILMA ANDERSON, Appellees.

No. 3AN-10-10122 CI

Superior Court of Alaska, First Judicial District, Anchorage

October 12, 2011

DECISION ON APPEAL

Hon. Patrick J. McKay Judge of the Superior Court

This case focuses on the essential functions of a substitute teacher and what, if any, accommodations can be made for a visually impaired substitute with a service dog. The other primary issue is the way in which the Anchorage School District ("ASD") and the substitute in this case, Vilma Anderson, approached (or failed to approach) the reasonable accommodation process and termination, and whether the decision to hold ASD liable for failing to engage in the interactive process was supported by the record. The final issue deals with whether the employee properly mitigated her losses in this instance.

FACTS

Many of the basic facts are uncontested. Vilma Anderson is in her sixties and suffers from a degenerative eye condition that has rendered her legally (and almost completely) blind. She has very limited but functional vision up close, but uses a black lab named "Jerry" as a service animal. The ALJ stated that "[s]he needed and relied upon Jerry the same way a paraplegic relies upon a wheelchair."1 She testified that it never occurred to her that she could not take Jerry anywhere or that people had dog phobias or allergies because she had never met anyone with those conditions.

After moving with her husband from Trapper Creek to Anchorage in 2005, Anderson applied for and was accepted as a substitute teacher with ASD. She met the basic requirements under ASD regulations (teaching certificate, background check, college degree, and positive letters of reference). She also speaks English, German, and Spanish. She specifically wanted to be a substitute because she suffers from migraines and believed she would need too much time off to maintain a full-time job. She also liked the flexibility of subbing, as she is an active genealogy researcher and traveler. As a substitute teacher, she could pick the days she wanted to work. When substitute teachers are needed within the ASD system, the assignments are posted on the Sub Finder system, which allows potential substitutes to log in, peruse both immediate and longer-term assignments, and select which ones they would like to accept.

Anderson ultimately qualified for work and was told she could begin accepting assignments as of October 10, 2005. She did not inform anyone of her blindness at the time because she did not think it limited her ability to work and she believed that she was legally allowed to take her service dog anywhere. It never occurred to her that it would be an issue.

1. Teaching Assignments

Because Anderson relied on public transportation, she could only realistically accept assignments at 17 schools. She worked at 5 different elementary schools on seven days in October 2005. At least some of the principals were uninformed and caught off guard by her blindness when she arrived to substitute. The ALJ described each assignment in more detail, but suffice to say that there were at least some problems on several of these occasions.

For example, she spent two half-days at Wonder Park Elementary, and the principal there, Lisa Zelenkov, was surprised to see Anderson arrive with a service animal because the school was designated dog-free. Ms. Zelenkov testified that otherwise the assignment was basically successful, but attributed that in large part to the fact that she prepped the children before Anderson arrived and checked in on the class frequently, which she would not be able to do regularly.

At Baxter, the principal, Vicki Hodge, did not believe that Anderson had successfully controlled her classroom because there was a disruption in class between two students that someone else handled. It also seems that Anderson had accidentally closed the door to the classroom while two students were still outside. Neither of these incidents was reported to ASD until after the adverse employment action taken a few days later.

At Creekside, the principal was informed prior to Anderson's arrival that she used a service animal. One child was removed from the class due to a dog phobia or allergy. No other problems were reported.

Finally, when she arrived to teach at Nunaka Valley one morning, she was informed that Jerry could not be accommodated at the school because it had been designated fur/dog free. At the direction of ASD's Human Resource Director for Certified Staff and Recruitment, Dr. Robb Boyer, Anderson was paid for the day but did not teach.

2. Accommodation/Termination

Dr. Boyer is the main ASD actor in this case. He first became aware of Anderson's blindness after the first principal to use Anderson found out she was blind and voiced concerns over potential safety issues. When this information got to Boyer, he contacted ASD's EEO office. A "fact-finding meeting" was scheduled for Oct. 24, 2005 because ASD did not know what, if any, limitations Anderson had. The meeting consisted of Anderson, Boyer, and ASD EEO investigator Valerie Woods.

During the meeting, Boyer learned about Anderson's near total blindness and discussed her experiences thus far. She described some instances of limitations (such as not being able to see all her students in an assembly), but believed that ASD's concerns over student safety in an emergency situation, allergies, and classroom control were not insurmountable. She also explained her methods of controlling students, such as rewarding good behavior with stickers, pencils, and time petting Jerry, and said that she walked around the room to check students' work and monitor them frequently. Later she explained in testimony that she also appointed a student leader to take attendance and help her know what was happening in class. She also suggested that she could check with the school nurse before any assignment and deal with allergy problems by either not teaching or having the child moved to another class for the day. She indicated that the safety concerns could be met by limiting her assignments to one or two schools, so that she could become very familiar with the layout and emergency plans at each location. Finally, she said that one of her biggest problems was the small text in the materials, but that she dealt with this by either using the student edition with larger print or by copying and enlarging the materials.

This meeting lasted about one hour, during which all parties agree that Anderson did not specifically ask for an "accommodation" by name. Dr. Boyer was still "open to Anderson subbing" after that meeting, but changed his mind after hearing the concerns from the two principals noted above.2 At that point, he decided that she could not be a substitute teacher because of the safety issues, the unreasonable requirement of moving students to accommodate the dog, and the fear that allowing her to remain on the "all-call" list would endanger her and the students at schools with which she was not familiar.3

The next day, Anderson discovered that she had been blocked from the Sub Finder system. She met with Dr. Boyer again the following day (October 26), bringing along service dog advocate Carol Shay because she thought that the meeting was to address lingering issues over Jerry. Instead, she received a letter that reiterated ASD's health and safety-related concerns, and advised her that she was being removed from the all-call list on the Sub-Finder system, which meant she was no longer available as a substitute. During the meeting, Dr. Boyer also described some alternate bilingual tutor positions that he thought she could fill because they would place her in a smaller, consistent setting with proximity to other adults who could assist in case of an emergency. Although he did not have the authority to offer her such a position, he urged her to seek one, identified several that were available within her travel restrictions, gave her an application, and later encouraged at least one principal to consider her. She left the meeting "bewildered and angry."4

She eventually inquired about those positions, but they had been filled. She did not return to Dr. Boyer because she felt she had been given "the run-a-round and her 'fate was sealed'."5 She never discussed, nor was she informed of, any other options for addressing the situation or changing ASD's decision. She then filed a complaint with the ASD EEO office on Nov. 11, 2005.6 Before a scheduled fact-finding meeting could be held, she filed a complaint with the ASCHR on November 30, 2005. According to ASD, its internal process was terminated as a result of the ASCHR complaint.

3.Proceedings Below

The Human Rights Commission ("HRC") initiated the hearing in this matter by filing a complaint in April 2009. After discovery and thorough briefing, the ALJ established the law of the case through several summary judgment motions. Most importantly, she ruled that under the undisputed facts, Anderson was disabled for the purposes of AS 18.80.220.7

The ALJ conducted a three day evidentiary hearing beginning on December 2, 2009. On March 23, 2010, she issued a preliminary recommended decision, accepted objections, and issued a final Recommended Decision on April 9, 2010. The HRC adopted that Decision on July 30, 2010.

4.Decision on Appeal

The HRC's Final Decision concluded that ASD had discriminated against Anderson by failing to explore (through the so-called "interactive process") whether her disability could be reasonably accommodated. Specifically, it found ASD responsible for the breakdown in the interactive process, but declined to reach the ultimate...

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