Discrimination suit against town continues

On April 3, U.S. District Court Judge Louise W. Flanagan lifted a stay and allowed a suit filed against the Town of Wake Forest by Erin Bray to go forward, a suit alleging she was wrongly fired while a probationary police officer because she was pregnant.

The information in this article is, except where so noted, taken from the filing in the case in the federal court in the western district of North Carolina. You can find the filing at www.leagle.com; search for “Bray.”

Bray was hired as a police officer with a six-month probationary period on April 23, 2013, and was assigned to patrol duties. She would have become a permanent employee on Oct. 23, 2013, but on Sept. 4 Bray, a Franklin County resident, discovered she was pregnant through a home pregnancy test. She told her supervisor, Capt. Darren Abbacchi, who told her to contact the town’s human resources department and continue working unless her doctor told her otherwise.

On Sept. 5 Bray got a doctor, a practitioner with Village Family Care, and gave it to Mitzi Franklin with the human relations department, who told her to get a second doctor’s note indicating the specific job functions she could or could not perform. Bray got a second doctor’s note, this one saying she “should be in a light duty position, preferably clerical or administrative for the duration of her pregnancy.”

At this time Human Relations Director Virginia Jones wrote an email to Police Chief Jeff Leonard asking if the police department had a light duty assignment for Bray, and Leonard replied: “[a]t this time I have no light duty that fits.” Franklin and Jones called or spoke to Bray, relayed Leonard’s message and told her she would be placed on short-term disability and would not be eligible for vacation hours until she was employed for six consecutive months.

(It is not mentioned in sequence in the filing, but two other officers in the same time period had received assignments to light duty.) Officer John VanNess, hired in 1988 who suffered an injury in September 2012, was assigned to limited duty and remained there while Bray was a probationary officer. Officer Jon-Ta Pulley, hired the same day as Bray, was injured in May 2013 and returned to duty that July.

On Sept. 21, Bray was asked by Jones in a letter to provide a fitness for duty evaluation, and three days later Jones and Franklin called Bray repeating that request. Bray said she was confused about what was needed to answer the request and later said Jones was “very vague” and said Bray’s doctors should answer the question whether Bray could perform the duties of a police officer.

That same day Bray’s gynecologist with Wake Med’s Women’s Center, Dr. Amantia Kennedy, sent a fax to the human relations department saying: “Due to her current pregnancy state patient is limited to no running or jumping activities.” The doctor said the restrictions against running, jumping and lifting more than 25 pounds could be lifted if [the] condition resolves.

On Sept. 25 Bray was called to a meeting with Jones, Leonard and Abbacchi where she was told she was terminated immediately based on her “inability to perform the essential functions of her position as a police officer.” Bray appealed her firing to Town Manager Mark Williams, saying the firing violated the Persons with Disability Act and the Americans with Disability Act. Williams denied the appeal on the grounds she could not appeal her termination because she was only a probationary officer.

Later, during the process of appealing her dismissal with the Equal Employment Opportunity Commission, the town submitted a position statement saying: “The Town of Wake Forest does not have a light duty policy. However, the Town has attempted to place employees who have been injured on the job (in-service) in temporary light duty assignments. The Town seeks light duty assignments (when possible) for employees who are injured on the job since they would otherwise receive workers’ compensation benefits. The Town seeks to get these employees back to work and limit or end the wage replacement benefits available through workers’ compensation. Therefore the Town reserves light duty work/assignments for those employees who are coming back from workers’ compensation leave. The Town does not provide light duty for personal/temporary medical conditions.”

Bray’s complaint against the town was filed in March of 2014, and her attorney, Mikeal R. Gross in Raleigh, a Police Benevolent Association lawyer, said the judge delayed ruling until after another federal case, Young v. United Parcel Service, was resolved because of the direct bearing on Bray’s case. Judge Flanagan said about the ruling there, “Consequently courts analyze a PDA claim as a sex discrimination claim under Title VII.” She also said that Bray had been able to claim disparate treatment. Referencing the light duty assignments for two male officers in the same time period, Judge Flanagan wrote, “Construing these facts in the light most favorable to plaintiff, they are sufficient to set forth a plausible claim that [the] defendants discharged plaintiff because of her pregnancy or related medical condition.”

Judge Flanagan granted the town’s motion to dismiss Williams, Jones and Leonard as individual defendants but denied the town’s motions pertaining to the PDA and ADA and Bray’s claim for wrongful discharge. She set June 18 as the date for another hearing when the attorneys can provide the information specified in the original order, the discovery phase of the proceeding.

Since the matter involves employment and insurance, the town used its insurance company and its lawyer, Katie Weaver Hartzog of Raleigh, to defend the case.

Gross said he was working with her “to get the case going” after the long wait. He also said Bray has a healthy baby but no job.