Case 4:08-cv-00005-MSD-FBS Document 30 Filed 08/15/2008 Page 1 of 20

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA
Newport News Division

TERESA L. ALTEMUS,

Plaintiff,

v. C.A. No.: 4:08-cv-5

GLOUCESTER COUNTY SCHOOL BOARD,

and
KEVIN M. SMITH,
and
ANN F. BURRUSS,
and
STARR F. BELVIN
and
RONNIE COHEN
and
ALVIN J. MCGLOHN, JR.
and
ANITA F. PARKER
and
JEAN E. PUGH
and
HOWARD B. KISER

Defendants.

REBUTTAL BRIEF OF DEFENDANTS

In response to the Plaintiff’s Brief In Opposition to Defendants’ Motion for Summary

Judgment, the Defendants submit their Rebuttal Brief as follows:

The Plaintiff’s suspicion that her political affiliation was a substantial motivating factor

in the denial of her request to make up time is unsupported by the evidence.

It is clear that Policy GBG does not provide the Plaintiff with the right to make up time.

For reasons previously stated in Defendants’ Brief In Support of Motion For Summary

Judgment, she has no constitutionally protected right to make up this time.

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In addition, there is no direct or circumstantial evidence that the Plaintiff’s political

activities were the reason her request to make up time was denied by the Gloucester School

Board. The School Board has stated in its Answer to Interrogatory No. 5 that it denied the

Plaintiff’s request to make up time because the unpaid leave was not consistent with Policy

GBG, was of little or no benefit to Gloucester High School, and caused problems in the operation

of the school. See Defendants’ Exhibit 2(I). There is no direct or circumstantial evidence that

any of the members of the School Board met or discussed the Plaintiff’s political affiliation or

activities when the School Board decided to deny the Plaintiff’s request to make up leave

without pay.

Moreover, unlike the claim of Mr. Lester in Chadwell v. Lee County School Board, 535

F. S. 2d 586 (W. Dt. Va. 2008), none of the Gloucester County School Board members have

been quoted as threatening to deny the Plaintiff’s request to make up time in retaliation for the

Plaintiff’s political activities. To the contrary, the uncontroverted evidence is that the Plaintiff

has been allowed unlimited leave without pay for her political activities. Moreover, unlike the

claim of Mr. Lester, there is no circumstantial evidence that any member of the School Board

was substantially motivated by the Plaintiff’s political activities in denying her request to make

up time, nor are there any false or pretextual reasons expressed by any member of the School

Board for its denial of the Plaintiff’s request. Their stated reasons are straightforward and

rational. There simply is no direct or circumstantial evidence of improper motive.

In their Reply Brief, counsel for Plaintiff relies only upon the Plaintiff’s Affidavit and the

deposition of her political ally, Michelle Ressler, who has no personal knowledge of the facts in

controversy. In her Affidavit, the Plaintiff contends that five of the School Board members were

improperly motivated in denying her request to make up time on or about December 15, 2005.

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The Plaintiff’s Affidavit is inconsistent with the Plaintiff’s deposition testimony in which

she admitted that she had no factual basis for her claims against any of the individual

Defendants, with the exception of Mr. Smith. See Defendants’ Exhibit 4, p. 8, l. 2 to p. 38, l. 14.

Moreover, the Plaintiff inaccurately cites alleged statements of opinion made by five members of

the School Board. These statements are inaccurate because they are either false, incomplete,

taken out of context, and/or temporally or otherwise unrelated. These statements simply do not

prove that the members of the School Board were improperly and substantially motivated by the

Plaintiff’s political activities when they denied her request to make up time on or about

December 15, 2005.

Although the Plaintiff claims that the School Board denied her request for leave on

December 15, 2005 because of her political activities, she has not cited any constitutionally

protected political activities by her which were the motivating or substantial reason for the

School Board’s denial of her request on December 15, 2005. Plaintiff argues that “these are facts

from which a reasonable jury could infer that a majority of the School Board was basing their

decision on personal political animosity towards the Plaintiff.” (Plaintiff’s Reply Brief, ¶ 4.)

The Plaintiff has failed to provide evidence that the actions of four individual members of the

School Board on December 15, 2005 were based on improper motives.

The Plaintiff’s allegations of improper motives are based on statements that relate to

actions taken by the Board of Supervisors approximately twenty years ago (prior to Plaintiff’s

election), in January of 2008, or to the relationship between the School Board and the Board of

Supervisors and not the Plaintiff’s request for leave. On page four of her Reply Brief, Plaintiff

contends that “the School Board…vehemently opposed the BOS’s decision to switch its funding

of the School Board…to categorically funding.” This switch occurred in January and February

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of 2008, several years after the School Board denied Plaintiff’s request on December 15, 2005,

and after the filing of this suit. See, Defendants’ Exhibits 15(A)(B) and (C).

On page 11 of her Reply Brief, Plaintiff contends that Kevin Smith allegedly made

statements on February 23, 2006, over two months after the School Board’s December 15, 2005

decision and after receiving a February 8, 2006 letter from Plaintiff’s counsel threatening this

lawsuit (Defendants’ Exhibit 12) that, in his opinion, the plaintiff had a conflict of interest.

On page 12, the Plaintiff cites Jean Pugh’s comment about members of Board of

Supervisors who were in office over twenty years ago; Dr. Cohen’s comment made in January of

2008, when she was no longer a member of the School Board; Ann Burruss’ opinion expressed

on January 8, 2008 as a “tax paying citizen”; Alvin Jay McGlohn’s comment about a possible

conflict of interest which occurred in 1999 or 2000; and, Starr Belvin’s alleged admission about

the School Board’s December 15, 2005 decision when she was not even a member of the School

Board. See, Plaintiff’s Exhibit 1, ¶ 8.

Plaintiff cites Kevin Smith’s deposition testimony (Plaintiff’s Exhibit 2) and Michelle

Ressler’s written summary of a February 23, 2006 conversation with Kevin Smith (Plaintiff’s

Exhibit 12) as evidence that Mr. Smith was improperly and substantially motivated by the

Plaintiff’s political activities in denying the Plaintiff’s request to make up time. Kevin Smith

has denied the contentions about the alleged February 23, 2006 conversation. See Defendants’

Exhibits 14 and 14(A). There is simply no evidence that Mr. Smith’s alleged opinion, that it was

a possible conflict of interest for the Plaintiff to vote on the School Board budget, allegedly

stated on February 23, 2006, fifteen days after receiving Defendants’ Exhibit 12, was a

substantial or motivating factor in the School Board’s decision to deny the Plaintiff’s request,

which was made over two months earlier on or about December 15, 2005,.

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Moreover, although Mr. Smith’s alleged statements to Ms. Ressler indicate that he

thought the Plaintiff’s motives may have been improper, they also affirm that, in general, Mr.

Smith’s motives in considering the Plaintiff’s requests were proper. Mr. Smith is alleged to have

stated that his perception of Ms. Altemus’ motivation in writing the 2005 letter requesting to

make up time was “unless you give me what I want, I will not give you what you want.”

However, he also stated that “I thought it (her complaint) was justified until I looked into the

situation and found that it was not”; that Ms. Altemus’ complaint was not justified because the

“other individual involved only one month”; that “the two situations were different because one

was for “one month” and the other was for “4 years”; and that “Mr. Snare, Dr. Kiser and Teresa

need to get together and get this straightened out.” These alleged statements indicate no

violation of any constitutionally protected rights of the Plaintiff by Mr. Smith in the December

15, 2005 decision of the School Board to deny the Plaintiff’s request to make up time.

In addition, Mr. Smith’s deposition testimony cited by the Plaintiff in her Reply Brief

proves that, although the relationship between the School Board and the Gloucester Board of

Supervisors was sometimes contentious, the motivation for the School Board’s decision to deny

the Plaintiff’s request was proper. See Plaintiff’s Exhibit 2, at pp. 16-23 and 25-27. The

Plaintiff’s Exhibit 2 proves that Mr. Smith testified in his deposition that the members of the

School Board did not have any conversations among themselves about the School Board budget

while he was present; that he had no opinion whether or not it was beneficial for the School

Board to have the Plaintiff on the Board of Supervisors; that the School Board did not deny the

Plaintiff’s request to have a meeting to consider making up work because she was a member of

the Board of Supervisors; and that the School Board’s decision denying the Plaintiff’s request to

make up time was based upon policy GBG and the fact that her request to make up time was

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denied because she requested to do so outside of the normal hours of operation of Gloucester

High School, which was not beneficial to the School Board. See Plaintiff’s Exhibit 2, p. 22, l. 9

to p. 26, l. 10, Defendants’ Exhibit 7(G), p. 37, ll. 1-10.

In her Reply Brief, the Plaintiff argues that controversial relations between the School

Board and Board of Supervisors, attributed to budgetary issues, constitute circumstantial

evidence that a majority of the School Board was substantially motivated to discriminate against

her in denying her request for leave. This argument fails for factual as well as legal reasons.

Controversial relationships between School Boards, which have no taxing authority, and their

local governments, which do have taxing authority, are common. Evidence of this relationship

in the present case does not constitute circumstantial evidence that the Plaintiff’s constitutionally

protected right to express herself politically was even an improper, substantial, or motivating

factor in the December 15, 2005 School Board decision.

Moreover, assuming solely for the sake of argument that the alleged comments of Kevin

Smith are true, there is absolutely no direct or circumstantial evidence that any of the Plaintiff’s

constitutionally protected political actions were discussed or considered by Mr. Smith or any

other member of the School Board when it denied the Plaintiff’s request to make up time.

Moreover, Mr. Smith’s alleged opinion on February 23, 2006, that he thought the Plaintiff might

be guilty of a possible conflict of interest for asserting a monetary claim or request to the School

Board to make up time at the same time that she was voting on the funding of the School Board’s

budget by the Board of Supervisors, was reasonable, rational and true. Like the Plaintiff, Mr.

Smith is entitled to express his political opinions about a locally elected official and a possible

conflict of interest. The Plaintiff later admitted to this conflict of interest. On January 2, 16, and

February 5, 2008, after the Plaintiff filed her Complaint on or about May 14, 2007 asserting the

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same claim to make up time, the Plaintiff introduced and voted in favor of a resolution requiring

categorical funding or more control over the funding of the School Board budget by the Board of

Supervisors; that resolution was later rescinded for reasons of impropriety; and the Plaintiff

publically admitted that she had a conflict of interest in participating in the discussion or voting

on the categorical funding. See Plaintiff’s Exhibit 12, Ressler Dep., at p. 23, l. 15, and Ressler

Dep. Exhibits 3, 4, and 6, attached as Defendants’ Exhibits 15(A)(B)(C). Although it was not a

conflict of interest as a general matter for the Plaintiff to vote on the School Board budget as an

employee and member of the Board of Supervisors, it was a conflict of interest for her and her

attorney to present a request to make up time, a monetary claim, and/or the threat of a lawsuit to

the School Board, and for the Plaintiff to vote on resolutions to fund the School Board budget.

See Virginia Code §§ 2.2-3100, 3101, 3112 and 3115.

The Plaintiff’s allegation that Ronnie Cohen was improperly motivated to deny the

Plaintiff’s request to make up time “solely because it was based on a request to make up political

time, which the Defendants’ claim was prohibited by Policy GBG” is simply false. (Plaintiff’s

Reply Brief, at p. 8.) Dr. Cohen explained in her deposition testimony that Policy GBG does not

allow the Plaintiff the employment benefit to make up the time in question, and that there is little

or no benefit to the School Board for her to do so. See Plaintiff’s Exhibit 3, at p. 23, l. 5 to p. 24,

l. 20. The Plaintiff’s statement that Dr. Cohen admitted she believed that the Plaintiff had a

personal, political vendetta against the School Board (Plaintiff’s Reply Brief, at p. 23) is also

false. It should be noted that this statement, attributed to Dr. Cohen, was made by her as a

private citizen on January 10, 2008, after she had retired from the School Board, and after May

14, 2007, the date on which this action was filed. See Plaintiff’s Exhibit 3, p. 13, ll. 10-23. In

addition, this statement referred to “the personal vendetta of particular board members” on the

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Board of Supervisors and did not relate to the December 15, 2005 decision by the School Board

to deny the Plaintiff’s request to make up time. It related to Dr. Cohen’s comments about the

actions of the Gloucester County Board of Supervisors in abruptly dismissing the county

manager and county attorney after they had already provided notice of their resignations in

January of 2008. See Plaintiff’s Exhibit 3, p. 13, l. 7 to p. 16, l. 21.

With regard to Alvin Jay McGlohn, Jr., the Plaintiff falsely states in her Reply Brief that

he denied her request to make up time solely because it was a request to make up political time,

which the Defendants’ claim was prohibited by Policy GBG (Plaintiff’s Reply Brief at p. 8); the

Plaintiff attempted to use her political position to obtain special treatment (Plaintiff’s Reply Brief

at p. 12); and the atmosphere between the School Board and the Board of Supervisors was

“sometimes so tense that you could cut it with a knife.” (Plaintiff’s Reply Brief at p. 12.) The

Plaintiff’s contention that Mr. McGlohn was of the opinion that actions by the Plaintiff in 1999

or 2000 could be considered a possible conflict of interest has absolutely no relevance to the

December 15, 2005 decision of the School Board under the facts of this case. See Defendants’

Exhibit 2(D), McGlohn Answer to Interrogatory 13.

Mr. McGlohn testified that his relationship with the Plaintiff was “fine” and that “I don’t

have any adverse feelings.” See Plaintiff’s Exhibit 4, p. 17, ll. 8-13. He also testified that,

although he disagreed with her position on categorical funding, the majority of the Board made

that decision, not the Plaintiff, and that decision was later rescinded. See Plaintiff’s Exhibit 4, p.

17, l. 22 to p. 18, l. 19. Mr. McGlohn also testified that, although the atmosphere between the

two Boards could be “cut with a knife” when he first got on the Board in January of 1995

(Defendants’ Exhibit 15, McGlohn Dep. p. 8, ll. 20-22), the School Board had worked hard to

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improve the relationship between it and the Board of Supervisors, and the School Board and had

done a pretty good job. (Plaintiff’s Exhibit 4, p. 32, l. 21 to p. 33, l. 8.)

The Plaintiff’s Exhibit 4 evidences that Mr. McGlohn testified in his deposition that he

was not aware of any actions constituting a conflict of interest by the Plaintiff, or any attempts by

the Plaintiff to use her position as a member of the Board of Supervisors to cause the School

Board to take any actions on her behalf since January 2005. (Plaintiff’s Exhibit No. 4, p. 19, l.

16 to p. 20, l. 5.) As previously stated, he also testified that the School Board’s decision to deny

the Plaintiff’s request to make up time was based on Policy GBG, and the fact that making up

time outside of the hours of normal operation of Gloucester High School was of little or no

benefit to the school and was disruptive. See Defendants’ Exhibit 7(D). As indicated by Mr.

McGlohn, the School Board agreed to meet with the Plaintiff to discuss other personnel issues on

January 11, 2005 as a courtesy to her and notwithstanding the fact that it was not normal

procedure. See Defendants’ Exhibit 15, p. 28, l. 2 to p. 34, l. 22.

As to Jean Pugh, Plaintiff alleges that she denied the Plaintiff’s request solely because it

was a request to make up political time (Plaintiff’s Reply Brief, p, 8.) and that the Board of

Supervisors “treated us like dirt.” (Plaintiff’s Reply Brief, at pp. 2 and 23.) The Plaintiff’s

contentions about Dr. Pugh are good indications of the inaccuracies of all of the Plaintiff’s

alleged statements by the School Board members. In response to a deposition question asking

her to provide “the historian’s view of the relationship between the School Board and the Board

of Supervisors in terms of the 20 years that you have been on the School Board”, Dr. Pugh

testified that “in general…it’s gotten better” when “some of the people who were on the Board of

Supervisors at that time did not get re-elected”; that the issue that caused a less than desirable

relationship twenty years ago with the former Board of Supervisors was that “the Board of

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Supervisors treated us like we were dirt”, but that she views the current situation as “okay”. See

Plaintiff’s Exhibit 5, p. 7, l. 1 to p. 9, l. 1. The Plaintiff has misrepresented the deposition

testimony of Dr. Pugh, in describing the relations between the two Boards approximately twenty

years ago, in an attempt to fabricate circumstantial evidence of improper motivation in the

School Board’s decision made on or about December 15, 2005. As previously stated, Dr. Pugh

is a close friend of the Plaintiff and has testified that she denies any improper motives in denying

the Plaintiff’s request to make up time.

As to Board member, Ann Burruss, Plaintiff alleges that her decision to deny the

Plaintiff’s request was solely because it was a request to make up political time, which the

Defendants’ claim was prohibited by Policy GBG; that the School Board treated the Plaintiff

differently as a good PR piece; and that she viewed certain of the Plaintiff’s political activities as

being “undignified, ruthless, and vile.” See Plaintiff’s Reply Brief, at pp. 8, 12 and 23.

Plaintiff’s allegations are similarly inaccurate. Although Ms. Burruss expressed her

opinion, “as a voting taxpayer”, that the actions of the Gloucester County Board of Supervisors

in summarily dismissing the county manager and county attorney were “undignified, ruthless and

vile”, she also testified that her comments and the events in question occurred on January 8,

2008, several years after the Plaintiff’s request had been denied on or about December 15, 2005,

and after the date on which this action had been filed; that the relationship of the two Boards was

generally good; and that her relationship with the Plaintiff was very good. See Defendants’

Exhibit 16, Burruss Dep. Transcript, p. 18, l. 1 to p. 23, l. 24 and Burruss Dep., Defendants’

Exhibit 2. As previously stated, she has also testified that her decision to deny the Plaintiff’s

request to make up time was based upon Policy GBG, and the fact that the request was disruptive

to normal operations of Gloucester High School.

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Plaintiff’s Exhibit 6, pp. 50-54 proves that Ms. Burruss testified that, although it was not

normal procedure for the School Board to hear employee complaints without exhausting

administrative remedies, the Board agreed to allow the Plaintiff to appear and make an argument

about her personnel issues as a professional courtesy and “in order to be cooperative”, as well as

good PR in light of the fact that the Plaintiff was a member of the Board of Supervisors, and that

a second meeting was not scheduled, because it was not normal protocol, the normal way of

handling personnel matters. Plaintiff’s attempt to use these facts as circumstantial evidence of

improper motivation is simply an attempt to fabricate evidence.

Ms. Burruss’ opinion that the Board of Supervisors’ improper dismissal of two county

employees, who had previously resigned in a public meeting of the Board of Supervisors, was

“undignified, ruthless, and vile” was her opinion expressed on January 8, 2008. It is certainly

not circumstantial evidence that she was motivated by the events of January 8, 2008 to deny the

Plaintiff’s request to make up time decided by the School Board on or about December 15, 2005.

It is simply an example of Ms. Burruss expressing her opinion about the improper actions of the

Board of Supervisors, actions which were later rescinded. See Defendants’ Exhibit 4(A)(B)(C),

Defendants’ Exhibit 16(A), and Plaintiff’s Exhibit 6, at p. 19, l. 15 to p. 31, l. 19. The First

Amendment allows Ms. Burruss and the other members of the School Board, as well as the

Plaintiff, the right of free speech as individuals in order to comment on the actions of locally

elected officials.

Finally, as to Board member Starr Belvin, Plaintiff alleges in her Affidavit, for the first

time, that Ms. Belvin admitted to the Plaintiff that “she agreed with me that she thought that

politics was the motivating factor behind the School Board’s denial of my request. Later, after

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Ms. Belvin became a School Board member, she repeated to me that politics was the motivating

factor in the Board’s denial of my request and refusal to meet with me.”

When asked to cite any evidence in support of her claim of improper action by the School

Board in her deposition, the Plaintiff was unable to do so. Now, the Plaintiff attempts to allege

admissions by Ms. Belvin. These late alleged admissions are unpersuasive given the fact that

Starr Belvin was not a member of the School Board when it denied the Plaintiff’s request to

make up time on December 15, 2005. Ms. Belvin became a member of the School Board in

2006. See Defendants’ Exhibit 17, Starr Belvin Dep. Transcript, p. 7, ll. 9-11. In addition,

Plaintiff’s own evidence refutes her allegation. Plaintiff’s Exhibit 7(A), p. 23, ll. 14-18 proves

that Ms. Belvin denied this contention in her deposition testimony.

Finally, in response to the myriad contentions about her job description and Melissa Seidl

included in the Plaintiff’s Exhibit 1, the Defendants include Defendants’ Exhibits 18, 18(A) and

18(B) and Defendants’ Exhibits 1(J) and 1(K), the Affidavit of Joe Snare, the Job Description in

effect for the Plaintiff, Joe Snare Dep. Testimony, p. 15, l. 19 to p. 20, l. 3 and pp. 21-28, as well

as the two policies of the School Board concerning job descriptions. Although the Plaintiff

refuses to accept this fact, the Superintendant has the only authority to change the Plaintiff’s job

description, and he has not done so.

UNDISPUTED MATERIAL FACTS

Although the Defendants’ Brief In Support Of Motion For Summary Judgment may not

comply with the format required by Local Rule 56(B) of the U.S. District Rules due to its failure

to include a specifically captioned section listing all material facts, the Defendants’ Brief In

Support Of Motion For Summary Judgment does comply substantively with this rule. Under the

“Argument” section of the Defendants’ Brief, the Defendants include sections which specifically

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identify the applicable legal issues and specifically identify the relevant facts and the parts of the

record relied on to support the facts. The Plaintiff has not disputed these contentions of facts,

which include the following:

1. The Gloucester County School Board acts only as a corporate body pursuant to

Virginia law and Board policies. The Gloucester County School Board, not the individual

Defendants, had the authority to make and enforce Policy GBG under its policies and Virginia

law. See, Defendants’ Exhibits 1(A-K).

2. As indicated in the Plaintiff’s Requests of Reappointment, her Employee

Compensation Sheets, Salary Worksheets, as well as the Kiser Affidavit, the Kiser Dep.

Transcript at p. 31, l. 22 to p. 32, l. 23, and the Affidavit of the former Principal of Gloucester

High School, Jean King, Defendants’ Exhibits 1, 5, 6, 7(H) and 8, each year the Plaintiff

indicated her desire to be reappointed, an “Employee Compensation Sheet” or “Salary

Worksheet” was issued by the School Board confirming her appointment and stating her salary

and hours of employment at 6.5 hours per day. She was never authorized by the Gloucester

County School Board to work more than 6.5 hours per day.

3. Policy GBG, attached as Defendants’ Exhibit 1(F), of the Gloucester County School

Board states as follows:

1. Political Activities: Employees of the School Board are encouraged to exercise

all of their rights as citizens, including involvement in political activities…
4. Employees Elected and/or Appointed to or Campaigning for Public Office:
An employee serving on government bodies requiring leave from the job station
for short periods of time must apply annually in writing to the School Board for
annual leave or leave without pay. Once the School Board has approved the
employee's initial request, such short leave periods should be scheduled through
the immediate supervisor of the employee. The School Board encourages
employees to recognize their responsibilities as citizens; however, leave should be
scheduled so as not to impede or interfere with the work schedule, with the
operation of the school division, or with the duties assigned to the employee.

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4. Plaintiff has admitted that every request she has made for leave without pay to

participate in her political activities has been approved by the School Board of Gloucester County.

Every time the Plaintiff requested to take such "leave without pay," she was permitted to do so. See

Defendant’s Exhibit 4, Altemus Dep. pp. 46, l.14 to p. 47, l. 3.

5. The Plaintiff has been allowed the benefit of determining when and in what

amounts of time she takes in order to pursue her political activities as a member of the

Gloucester County Board of Supervisors, as well as other related activities. The Plaintiff has

taken one hundred, thirty-six (136) days of leave over a fifteen year period of time since the

1994-1995 school year, or eight hundred, eighty-four (884) hours of leave. In school years

2005/2006, 2006/2007, and 2007/2008, Plaintiff took twenty-eight (28), thirty-six (36) and

twenty-four (24) days of leave pursuant to Policy GBG, or a total of eighty-eight (88) days, or

five hundred, seventy-two (572) hours of leave. The Plaintiff contracted to work one hundred,

eighty-two (182) days during each of these school years. Therefore, the Plaintiff's claim is not that

she has been denied the opportunity to take part in political activities, but that she was not permitted

to make up eighty-eight (88) days or five hundred, seventy-two (572) hours of leave during the last

three school years outside of the normal schedule and hours of operation of Gloucester High School.

See, Summary of Plaintiff’s Leave Requests, Defendants’ Exhibit 11.

6. Plaintiff admits that she was aware of policy GBG before she first engaged in political

activities and that she utilized it for nine years, from 1994 until October of 2005, without submitting

any requests to make up the time. See Altemus Dep. at pp. 45:21-23, 46:14-47:3, Defendants’

Exhibit 4.

7. Plaintiff initially made the request to make up time missed pursuant to Policy GBG

to her supervisor, Joseph Snare (“Snare”), by e-mail dated November 16, 2005, after she was

offered an altered schedule for professional development. Defendants’ Exhibit 9. Plaintiff and

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her attorney repeated the same request to the Superintendent of GCPS, Dr. Howard B. Kiser

(“Kiser”), by letter dated December 8, 2005, as follows:

Moreover, the existing policy does not address this issue of the ability to
make up missed time; it simply provides that the missed time is not to be
compensated, it is to be leave without pay. Such obviously follows that the work
was not done at that time. Thereafter comes the current issue of the ability to
make up such time.

My request is to be able to perform that work which is otherwise expected.

It is simply a matter of doing such work outside of my normal work hours since
those hours are the subject of conflicting with my duties as a member of the
Board of Supervisors.

See Defendants’ Exhibit 10 and 12.

8. The Plaintiff’s request to make up time was denied by the Gloucester County

School Board on December 15, 2005, and not by the individual Defendants. See Defendants’

Answers to Interrogatories, Answer No. 3, Defendants’ Exhibit 2(A-H) and Defendants’ Exhibit

3.

9. Plaintiff has presented no evidence of improper or constitutionally suspect motives

of four Board members. There are no material facts in dispute that the Plaintiff’s political activities

were not a substantial or motivating factor in the decisions to deny the Plaintiff’s requests to make up

time. There is no evidence that the Board members ever met or discussed the Plaintiff’s political

activities as a motivating factor in their decision to deny her requests. See Defendants’ Exhibit 2

(Defendants’ Answers to Interrogatories), Exhibit 4 (Plaintiff’s Dep. Testimony), Exhibit 6

(Affidavit of Dr. Kiser), and Exhibit 7 (Defendants’ Dep. Testimony).

10. Every member of the School Board and Kiser have testified that the Plaintiff’s

political activities had nothing to do with the decisions to deny the Plaintiff’s request to make up

time. See the Answers to Interrogatories of the Defendants, the Excerpts of Deposition

Testimony of the Defendants, Belvin at pp. 8:24-9:3, 14:17-15:9, 15:10-16:16, 19:8-11; 20:14-

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21:3, 23:8-18; Burruss at pp. 18:9-12, 23:18-24, 27:20-28:12, 33:16-34:8, 35:20-26:15, 37:8-

38:16, 48:6-50:1, Cohen at pp. 10:13-24, 12:17-24, 18:1-9, 18:15-17, 23:5-26:2, 27:2-9, 29:22-

31:2; McGlohn at pp. 44:2-25, 46:19-48:2, 48:19-49:17; Parker at pp. 9:17-25, 10:1-14, 11:1-8,

13:2-7, 13:23-14:11, 14:24-15:13; Pugh at pp. 7:21, 20:1-21:4, 26:8-23; Smith at pp. 24:20-24,

25:22-26:10, 32:1-13; Kiser at pp. 50:3-55:11, 25:25-61:14, 67:22-24, 69:6-70:2, and Kiser

Affidavit, attached hereto as Defendants’ Exhibits 2(A-I), 7(A-H), and 6.

11. The School Board members who were Republicans and/or close friends of the Plaintiff,

Dr. Pugh (“Pugh”) and Ms. Belvin (“Belvin”), did not approve the Plaintiff’s requests to make up the

time she missed while engaging in political activities. Belvin and Pugh Answers to Interrogatories,

attached hereto as Defendants’ Exhibits 2(A) and 2(F).

12. The School Board had a legitimate interest in seeing that its employees work during

the normal schedule and hours of operation of the Gloucester High School; the mission of the

Gloucester County School Board and Gloucester County Public Schools is to provide a free and

appropriate education for the children of Gloucester County; and according to the Superintendent

of Schools, Dr. Kiser, the principal objective of the Plaintiff’s job is to provide services to

teachers and students during normal school hours. See Defendants’ Exhibits 2, 6, and 7.

13. The normal schedule and hours of operation for all three Technology Assistants

during the years in question were approximately 7:00 a.m. to 3:00 p.m., and the School Board

and the Superintendent established the plaintiff’s job duties, not the Plaintiff. See Gloucester

County School Board Policies and Kiser Affidavit, attached hereto as Defendants’ Exhibits 1, 6

and 13.

14. There is little or no benefit to the Gloucester County School Board for the Plaintiff

to make up time missed pursuant to Policy GBG at times outside of the normal hours of

operation of Gloucester High School, and it is disruptive to this job responsibility as well as the

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normal schedule and operation of Gloucester High School to have the Plaintiff attempt to

perform her job after normal school hours. See Defendants’ Exhibits 2, 6 and 7, Kiser Dep. at

pp. 20:4-21:19, 26:5-27:4, 27:5-25, 56:25-61:14, Kiser Affidavit, and Summary of Plaintiff’s

Leave, attached as Defendants’ Exhibits 7(H), 6 and 11.

15. The School Board of Gloucester County denied Plaintiff’s request to make up the

time she previously missed due to political activities and leave without pay pursuant to the

school policy GBG, because her requests to make up large amounts of time were too disruptive

to the normal operation of the schools and failed to meet her primary job responsibilities of

providing services to teachers and students. See Defendants’ Exhibits 2, 6 and 7.

16. The Plaintiff’s allegation of disparate treatment is based upon the very same

treatment which was offered to the Plaintiff, namely an adjusted schedule, which was offered for

one time only, during the fall semester, for the purpose of professional development. The

Plaintiff requested the same schedule afforded to Seidl, an adjusted schedule so that she could

pursue her professional education; the Plaintiff was encouraged by Joe Snare, her supervisor, to

engage in the same schedule provided Seidl during the fall semester of 2005 for the same

purpose, i.e. professional development, and the Plaintiff declined to pursue same. See e-mail

from Snare to Teresa Altemus, October 28, 2005, attached hereto as Defendants’ Exhibit 9, and

Altemus Dep. at pp. 37:12-38:14, Defendants’ Exhibit 4.

17. The Plaintiff has not requested a schedule for a short duration, namely one

semester, or for one occasion, but she has requested a schedule that would be unlimited in

duration, and, in addition, the Plaintiff has requested to make up all time previously missed

outside of the normal schedule and hours of operation of Gloucester High School. She has not

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requested to work during the normal schedule and hours of operation of Gloucester High School.

See Defendants’ Exhibits 4, 10 and 12.

18. The Plaintiff has never requested the School Board to allow her to make up the time

she has missed pursuant to Policy GBG during the normal schedule and hours of operation of

Gloucester High School. As the Plaintiff explained in her letter request to Kiser, “…those hours

are the subject of conflicting with my duties as a member of the Board of Supervisors.” See

Defendants’ Exhibit 10.

19. The Plaintiff’s only evidence of disparate treatment is based on the very same

treatment, an altered schedule, which was also offered to the Plaintiff for the same purpose,

professional development. See, Defendants’ Exhibit 9 and Exhibit 4, Altemus Dep, p, 37, l. 12

to p. 38, l. 4.

GLOUCESTER COUNTY SCHOOL BOARD,

KEVIN M. SMITH,
ANN F. BURRUS,
STARR F. BELVIN,
RONNIE COHEN,
ALVIN J. MCGLOHN, JR.,
ANITA F. PARKER,
JEAN E. PUGH,
and HOWARD B. KISER

By Counsel

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/s/
John A. Conrad, Esquire
Virginia State Bar Number: 17640
Abbigale B. Fredrick, Esquire
Virginia State Bar Number: 46257
Attorneys for the Defendants
THE CONRAD FIRM
1520 West Main Street, Suite 204
Richmond, VA 23220
Phone 804-359-6062
Fax: 804-359-6064
jconrad@theconradfirm.com
afredrick@theconradfirm.com

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 Case 4:08-cv-00005-MSD-FBS Document 30 Filed 08/15/2008 Page 20 of 20

CERTIFICATE OF SERVICE

I hereby certify that on the ____ day of August, 2008, I will electronically file the
foregoing with the Clerk of Court using CM/ECF system, which will then send a notification of
such filing (NEF) to the following:

David A. Kushner, Esquire

Willcox & Savage, PC
One Commercial Place, Suite 1800
Norfolk, VA 23510
dkushner@wilsav.com

and that I will mail the foregoing by U.S. Mail to the following:

William E. Rachels, Jr., Esquire

Willcox & Savage, PC
One Commercial Place, Suite 1800
Norfolk, VA 23510
________/s/____________________
John A. Conrad, Esquire
Virginia State Bar Number: 17640
Abbigale B. Fredrick, Esquire
Virginia State Bar Number: 46257
Attorneys for the Defendants
THE CONRAD FIRM
1520 West Main Street, Suite 204
Richmond, VA 23220
Phone 804-359-6062
Fax: 804-359-6064
jconrad@theconradfirm.com
afredrick@theconradfirm.com

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