Disabled woman continues fight with Durham Tech

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Disabled woman continues fight with Durham Tech
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By John Stevenson : The Herald-Sun
jstevenson@heraldsun.com
Jan 12, 2003 : 7:13 pm ET

DURHAM -- Even though she must fight from a wheelchair and already has lost two rounds, Susan F. Johnson is not throwing in the towel on her years-old judicial slugfest with Durham Technical Community College.

She contends Durham Tech discriminated against her because she is handicapped, allegedly dismissing her from an instructor's position eight years ago because of a polio-related disability. Her job involved teaching literacy skills to inmates at the county jail.

The case first went to trial in 1998, when Judge Narley Cashwell threw out Johnson's claim. He said Johnson failed to show her handicap was the sole reason Durham Tech did not renew her teaching contract.

Next, the state Court of Appeals stepped in and gave Johnson another chance. Unlike Cashwell, the appellate judges said Johnson did not need to show her disability was the only reason she lost her contract. Rather, she merely had to demonstrate that it was a "motivating factor," the court ruled.

So Johnson had a second trial in 2001, this time before Judge Howard Manning without a jury.

Manning concluded that discrimination was not the reason Johnson lost her job. The judge said anonymous telephone calls questioning Johnson's integrity were behind Durham Tech's decision to let her go.

Now, Johnson is about to have yet another day in court.

Through Durham lawyer Stewart Fisher, she will take her case once again to the state Court of Appeals on Jan. 22. Fisher and attorney George W. Miller III, representing the school, each will have 30 minutes to argue their respective sides.

Fisher will ask the appeals court to reinstate Johnson to her job and enjoin Durham Tech from engaging in alleged disability discrimination. He also will request a hearing to assess Johnson's lost wages and legal fees.

The question for appellate judges is this: Did Manning erroneously conclude that anonymous calls, rather than discrimination, motivated Durham Tech to let Johnson's teaching contract lapse.

Fisher maintains that Manning "erred as a matter of law."

There also is a question of timing: Did the calls come before or after the contract ended?

Fisher contends they came later and "were received by the college after it had already made a discriminatory decision." But Durham Tech claims the calls were received first.

"No victim of discrimination will ever prevail if an employer may be excused from illegal conduct based upon the veiled accusations of an unidentified and unreliable informant," Fisher wrote in a brief to the appeals court. He said appellate judges "should reject the use of rank hearsay as justification for an unlawful employment decision."

But lawyer Miller, writing for Durham Tech, told appellate judges the calls about Johnson were "important and could not be ignored.

"The sole basis for the decision affecting Ms. Johnson's employment at Durham Tech was the serious allegations contained in the phone calls," Miller wrote.

The defense lawyer also argued that the calls "were not received after any discriminatory act or practice, but rather before any final decision was made."

The calls included allegations that Johnson was involved in illegal activity with guns and drugs and that she was having relationships with jail inmates, Miller noted. He said such complaints "were serious enough to properly keep Ms. Johnson from continuing to work for the college anywhere ... and especially in the jail setting."

However, Fisher has blasted the allegations as "vicious lies" fabricated by a nursing assistant who was angry because Johnson refused to lend her money.

Evidence in her two trials showed that Johnson, then on crutches, fell at the county jail and broke her back while trying to open a heavy door in 1994. Then she fell at home and broke a leg, after which she began using a wheelchair most of the time.

Durham Tech subsequently offered Johnson a safer teaching position at another location, but she was not interested, evidence indicated.

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