- The Washington Times - Sunday, April 8, 2012

The case of a Loudoun County Public Schools employee fired after taking approved medical leave for treatment of a brain tumor will go to a jury trial after a federal judge last week refused to dismiss her complaint.

Kristin Ainsworth said she worked as a teacher’s assistant at Seneca Ridge Middle School from 2002 to 2004 when she started to experience severe headaches. She was promoted to a position at Rosa Lee Carter Elementary School in 2008 and her pay was increased from $17 to $25 an hour.

But because of the severity of her ongoing headaches, Ms. Ainsworth requested leave from March to June 2008 under the Family and Medical Leave Act (FMLA).

Ms. Ainsworth said in court papers that she received a call from a school official saying that, regardless of her medical condition, she was expected to be at school every day. After Ms. Ainsworth said she was scheduled to have an MRI to determine the cause of her condition, the official also questioned whether she was really sick, saying that she would have been tested sooner if that were actually the case, according to the court documents.

Ms. Ainsworth was diagnosed with a brain tumor May 13, 2008.

After surgery and follow-up procedures, she was medically cleared to return to work part-time on Jan. 5, 2009, and two county school officials assured her a full-time classroom position would be waiting for her when she was ready, she said in court papers.

In June 2009, though, she was told by Delores Creech, identified as a “personnel specialist” with the school system, that her position was filled and that her salary was going to be decreased from $25 an hour to $17 an hour, the court papers say.

Ms. Ainsworth said in court papers that she protested that they could not do that to her.

“Well honey, we can, and we did,” replied Ms. Creech, according to court documents.

Instead, Ms. Ainsworth was given a job for the 2009-2010 school year working with emotionally disturbed children at Cool Spring Elementary School. Between time off for follow-up treatments and illnesses, she took about 89 days of leave during the school year, she said in her complaint. She was granted family leave and was assured by Ms. Creech that she would get another contract for the following year, her court papers say.

Ms. Ainsworth said in court documents that she received a letter from the school system on May 28 saying her employment was terminated, effective June 21, 2010.

In November, she sued the school system.

U.S. District Judge James C. Cacheris recently dismissed some charges relating to interference with rights granted by the FMLA and discrimination in violation of the Americans with Disabilities Act. But he declined last month to dismiss a charge that the school system fired Ms. Ainsworth because she was diagnosed with a brain tumor and exercised her right to take leave under the federal law. Those charges allege the Loudoun County School Board “evidenced malice, spite, and ill will; their actions were willful and evinced a conscious disregard for the rights of Ms. Ainsworth.”

The original complaint also names five individual school employees, including Ms. Creech.

Ms. Ainsworth is seeking lost income and benefits of employment, including back pay, bonus and commission payments, plus interest, liquidated damages as provided for under the FMLA, compensatory and punitive damages in an amount to be determined by the jury, as well as attorney and expert-witness fees and, potentially, her job back.

The Loudoun County School Board and the individuals named in the lawsuit deny most of the charges in court papers and say Ms. Ainsworth’s amended complaint fails to state a claim or cause of action for which relief may be granted. They also say the U.S. District Court for the Eastern District of Virginia in Alexandria lacks jurisdiction because Ms. Ainsworth has not suffered any violation of any federally protected rights.

They acknowledge Ms. Ainsworth requested and was granted FMLA rights and took leave from Aug. 27 to Dec. 1, 2008, and that she took a leave of absence for the final four days of the school year from June 18 to 21, 2010.

Both sides last week demanded a jury trial to resolve the dispute. A trial date has not been scheduled.

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