Altemus SB Brief

Case 4:08-cv-00005-MSD-FBS Document 29 Filed 08/08/2008 Page 1 of 30
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, Et Al
PLAINTIFF TERESA ALTEMUS’ BRIEF IN OPPOSITION TO DEFENDANTS’

MOTION FOR SUMMARY JUDGMENT
I. PRELIMINARY STATEMENT
This case arose from a simple matter, which could have been easily resolved in the
absence of egos and small-town politics. Unfortunately, not only have the Defendants refused to
grant Plaintiff Teresa Altemus’ very reasonable request, but they have also utterly refused to
even meet with her over the past three years. Plaintiff is employed as a Technology Assistant
(“TA”) for the Gloucester County School Board. Since 1993 she has also been an elected
member of the Gloucester County Board of Supervisors (“BOS”), currently serving as its chair.
The BOS is the body responsible for appropriating and approving the School Board’s budget.
Plaintiff’s political responsibilities sometimes require her to be absent from her job for short
periods during normal working hours. Pursuant to School Board Policy GBG, the School Board
classifies the time Plaintiff misses as unpaid time off. This decreased compensation is a
hardship to Plaintiff, but she does not expect to be paid for time in which she does not work, and
for years she did not know that there was an alternative under which other employees were
allowed to earn the full scope of their contractual compensation, under similar circumstances.
However, in 2005 Plaintiff learned that the School Board had allowed another TA to
make-up time she missed during normal school hours. This employee had to miss approximately
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seven hours per week, but was allowed to make up these hours either before or after normal
school hours. Thus, this employee, unlike Plaintiff, was able to earn the full scope of her
compensation. After learning about the benefit provided to other employees, Plaintiff made a
simple request. She wanted to be allowed to make up time she missed while serving on the BOS,
just as other employees had been allowed to do for non-political activities.
The Defendants have repeatedly denied Plaintiff’s requests on the sole basis that the time
Plaintiff misses is for political reasons. They have also ignored numerous letters from Plaintiff
and her attorney asking only that she be given a meeting to explain her position. Meanwhile,
Defendants have described Plaintiff’s political activities as “vile,” “ruthless,” “undignified,” and
“illegal,” and they have accused the BOS itself of treating the School Board “like dirt.” The
Defendants’ political animus against Plaintiff is so strong, that they have chosen to face a lawsuit
instead of giving Plaintiff ten minutes to explain her request at a School Board meeting.
In denying Plaintiff’s request solely on the basis of politics, Defendants have violated
Plaintiff’s rights under the First and Fourteenth Amendments. Separately, the Defendant School
Board has breached Plaintiff’s employment contract by failing to pay her for all of the hours they
required her to work.
II. LISTING OF DISPUTED FACTS AND ARGUMENT REGARDING

DEFENDANTS’ FAILURE TO COMPLY WITH LOCAL RULE 56(B)
A. The Court Should Deny Defendants’ Motion for Failure to Comply with
Local Rule 56
Local Rule 56(B) requires a defendant moving for summary judgment to include in its
brief, “a specifically captioned section listing all material facts as to which the moving party
contends there is no genuine issue and citing the parts of the record relied on to support the listed
facts as alleged to be undisputed.” It is crucial that a defendant comply with Rule 56(B), because
this rule also requires a plaintiff to specifically list which of the defendant’s alleged undisputed
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facts remain in dispute. Failure of a plaintiff to dispute each fact listed by the defendant as being
allegedly undisputed can result in these facts being taken as admitted. Id.
Defendants in this case have utterly failed to comply with either the text or spirit of Rule
56(B). Defendants’ brief does not include a specifically captioned section listing which facts
they claim are undisputed. Even the body of Defendants’ brief fails to identify with specificity
which facts they contend are undisputed. Instead, Defendants’ brief largely contains sweeping
legal statements such as “there are no material facts in dispute that the Plaintiff’s requests… are
not constitutionally protected.” (See Defendants’ Brief in Support at pg. 12.) Courts in the
Eastern District have stated on numerous occasions that failure to abide by Local Rule 56(B)
“may result in the dismissal of the motion” for Summary Judgment. Wilkins v. Clary, No.
CIV.A 3:01CV79, 2005 WL 1705211 (E.D.Va. July 5, 2005), aff’d, 216 Fed. Appx. 322 (4th Cir.
2007); see also DirecTV, Inc. v. Key, NO. CIV.A 3:03CV321, 2003 WL 24336355 (E.D.Va.
Dec. 31, 2003)(dismissing Defendant’s Motion for Summary Judgment in part based on failure
to comply with local rule 56.), aff’d, 133 Fed. Appx. 877 (4th Cir. 2005).
Plaintiff has been prejudiced by Defendants’ violation of Local Rule 56. It is difficult if
not impossible to determine which facts Defendants claim are undisputed. This is especially so
because the section of Defendants’ brief titled “Facts” only includes seven alleged facts, all of
which merely cite to Plaintiff’s Complaint. See Defendants’ Memo in Support at pgs 1-2.
Moreover, both parties are also bound by Local Rule 7(F) which requires that all briefs be
limited to no more than 30 pages in length. While Defendants’ lack of compliance with Rule
56(B) allowed them to begin their legal argument on page 2 of their brief, Plaintiff has complied
with Rule 56(B) spending fifteen pages listing the facts in dispute in this case. For these reasons,
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Defendants’ Motion for Summary Judgment should be dismissed based on their failure to
comply with Local Rule 56(B), and the prejudice accompanying this violation.
B. Plaintiff’s Listing of Disputed Facts
Plaintiff’s Factual Recitation of General Disputed Facts1
1. It is undisputed that Plaintiff brought this suit under 42 U.S.C. § 1983
alleging that the Gloucester County School Board (the “School Board”) and eight individual
Defendants (in their official and individual capacities) violated her rights under the First and
Fourteenth Amendment. Plaintiff also has brought suit against the School Board for unpaid
compensation under her written employment contract. See First Amended Complaint.
2. It is undisputed that Plaintiff is employed as a Technology Assistant
(“TA”) for the Gloucester County School Board. Since 1993, Plaintiff has also been an elected
member of the BOS. The BOS is responsible for approving the School Board budget, and for
appropriating money to the School Board. (Affidavit of Teresa Altemus, attached as Exhibit 1 at
¶ 2). At times, there has been significant tension and bad-blood between the School Board and
the BOS. For example, the School Board uniformly and vehemently opposed the BOS’s
decision to switch its funding of the School Board from payment in one “lump sum” to
“categorical funding,” in which the BOS decides which education categories need the most
funding. A number of School Board members viewed this change, which was supported by
Plaintiff, as being based on a “personal vendetta,” or as reflecting a lack of trust in the School
Board. (See Exhibit 1 at ¶¶ 2-6; Smith Depo., attached as Exhibit 2 at pgs. 16-23; Cohen email
and Depo., attached as Exhibit 3 at pgs. 11-18; McGlohn Depo. attached as Exhibit 4, at pgs 17-
1
Unless otherwise noted, Plaintiff contends that the following facts remain in dispute. However, Defendants have
not specifically addressed these facts with citation to the record in Defendants’ brief.
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21; Pugh Depo, attached as Exhibit 5, at pgs 7-11; Burress Depo., attached as Exhibit 6 at pgs.
14-22).
3. Plaintiff’s position as a TA at Gloucester High School has changed over
time. This position has always required Plaintiff to update computers, install and update
software, turn on the computers in the morning and turn them off in the afternoon, perform
routine maintenance, and to a lesser degree, to serve as a resource for students and teachers.
(Exhibit 1 at ¶¶ 7-9). In August of 2005, the School Board revised the Gloucester TAs’ job
description and duties. While the TAs still had the same general list of duties, they were no
longer to have direct responsibility for assisting teachers and students. Indeed, the TAs were
specifically directed to refer the teacher or student to the computer “Help Desk” anytime one of
them had a technology question. The TAs were specifically directed not to help the teacher and
students personally. (Id.) The School Board’s revised job description which was put in place to
reflect these duties, listed Plaintiff’s top duties as (1) performing operating system and Microsoft
Office updates, (2) updating virus scanning software and virus definitions, (3) assisting the “Help
Desk” with software rollouts, (4) advising the Help Desk and school principal of any
computer/network related issues which can potentially impact instruction, and (5) maintaining a
clean computer environment. (See email from Joe Snare attaching job description, attached as
Exhibit 7). A significant percentage of these duties can be performed outside of the normal
school hours in which students are present. Indeed, some of these duties can be more easily
performed when the computer labs are empty. A number of TAs, including Plaintiff have in fact
been allowed to perform work before or after normal school hours. (Exhibit 1 at ¶ 8, Kiser
Depo. attached as exhibit 8 at pgs 59-67).
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4. Prior to 2005, when Plaintiff was required to be away from School during
normal school hours because of her political duties on the BOS, the School Board forced her to
take this time as unpaid time off. Plaintiff did not initially complain about this situation because
she did not realize that the School Board allowed similarly situated employees to make up time
they missed for non-political time-consuming activities. However, the unpaid time during
which Plaintiff was performing political duties was a substantial financial hardship for Plaintiff,
because she was unable to work the full amount of hours for which the School Board contracted
her. Thus, Plaintiff earned thousands of dollars less per year because she was forced to miss
time and, unlike other employees, because she was not allowed to make any of this time up.
(Exhibit 1 at ¶¶ 10-12).
5. From the fall of 2005 until the spring of 2006, Melissa Seidl, another TA
at Gloucester High, requested that she be allowed to be absent during normal school hours to
attend a class in Richmond, Virginia. This class was not related to Ms. Seidl’s job as a
technology assistant. Ms. Seidl’s school and travel required her to miss approximately seven
hours of work per week. Unlike Plaintiff, the Defendants allowed Ms. Seidl to work a flexible
schedule in which she was permitted to make up the time she missed either before or after
normal school hours. Thus, Ms. Seidl was able to maintain full pay, while Plaintiff was
required to submit to less than full pay. (Exhibit 1 at ¶¶ 10-13, Exhibit 8 at pgs. 59-67, Exhibit
13 at 40-42).
6. On November 16, 2005 Plaintiff requested that she be allowed to work a
similar schedule to that worked by Ms. Seidl, allowing her to make up some of the time she
missed for her political service either before or after normal school hours. Even Plaintiff’s
supervisor had previously agreed that it was technically feasible for Plaintiff to be given a similar
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benefit as that received by Ms. Seidl. (Email chain regarding initial request, Attached as exhibit
9; Exhibit 1 at ¶ 14). However, because Plaintiff’s request involved political leave, her
supervisor believed that the request needed to be submitted to the School Board. Plaintiff’s
supervisor forwarded Plaintiff’s request, in which she merely asked that she be allowed, like Ms.
Seidl, to “make up the hours missed due to my absence from my job because of my service as a
member of the Gloucester County Board of Supervisors… Please understand that that I simply
wish to work all of the hours established for my school position.” (Id.)
7. On December 1, 2005, Superintendent Kiser sent Plaintiff a letter denying
her request. Kiser claimed that his denial was based on School Board policy GBG, titled
Employee Participation in Political, Government, or Religious Activities. This policy states
that:
An employee serving on government bodies requiring leave from

the job station for short period of time must apply annually in
writing to the School Board for … leave without pay. Once the
Board has approved the employee’s initial request, such short leave
periods should be scheduled through the immediate supervisor of
the employee.
On its face, this policy provides that the time taken by the employee must initially
be classified as leave without pay. However, the policy is silent as to whether the employee may
later make up the time they missed while exercising the employee’s First Amendment Rights.
(Policy GBG, attached as Exhibit 10).
8. In his denial letter, Kiser seemed to wrongly believe that Plaintiff was
requesting that she be paid for the time she missed, instead of requesting merely that she be able
to make up the time before or after school, as other employees had been allowed to do. Dr. Kiser
also oddly stated that policy GBG was intended to protect Plaintiff from political criticism. (See
Exhibit 11, chronological attachment of relevant letters). Because Dr. Kiser had ignored
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Plaintiff’s question about making up time, and because he had made the strange comment about
protecting her from political criticism, Plaintiff sent a letter to the School Board forwarding her
request. Plaintiff’s December 8, 2005 letter explained that she merely wanted to be given the
same consideration and benefit that had been given to Ms. Seidl: The ability to work a flexible
schedule allowing her to make up a portion of the time she missed while serving on the BOS.
Plaintiff explained that, like her co-worker Seidl, a significant percentage of her duties as a TA
could be performed outside of normal school hours. (Exhibit 11, Exhibit 1 at ¶¶ 15-16).
9. On December 12, 2005, the Defendants discussed Plaintiff’s request
during a closed session. During this meeting the Defendants shockingly did not compare or
contrast the feasibility of Plaintiff’s request with the Ms. Seidl’s previous request which the
School Board had already approved, and the Defendants have never made this comparison. (See
exhibit 6 at pgs 39-41) Nor did the Defendants ever review or evaluate Plaintiff’s job description
or job duties to determine if she had duties that could be performed outside of normal school
hours. (See Depo. of Anita Parker, attached as Exhibit 15, at pgs. 15-16; Exhibit 6 at pgs. 31-34;
Exhibit 3 at pgs 22-24). Instead, the Defendants denied Plaintiff’s request solely because it was
based on a request to make up political time, which the Defendants claim was prohibited by
GBG. (See Exhibit 2 at pgs 25-27; exhibit 3 at pgs 23-24; Exhibit 4 at pgs. 46-47; Exhibit 5 at
pgs 12-17, Exhibit 6 at 35-40).
10. On December 15, 2005, Defendant A.J. McGlohn sent a letter to Plaintiff
denying her request without explanation, other than citing to Policy GBG. (Exhibit 11). Plaintiff
did not understand why Ms. Seidl would be allowed to make up approximately seven hours of
work per week allowing her to be fully paid, while Plaintiff would be denied this right without
explanation. Plaintiff believed that she was being discriminated against on the basis of her
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political activity and actions. Plaintiff would been totally satisfied had the School Board only
given her a rational explanation. However, without having received such an explanation (other
than Kiser’s suspicious statement that Policy GBG was intended to protect her from political
criticism), Plaintiff was left with no conclusion other than that she was being denied an important
benefit because of her exercise of her First Amendment Rights. Nevertheless, Plaintiff
attempted to engage the Defendants in informal discussions about their rationale for the denial of
her request. Disturbingly, during one such conversation, Defendant Starr Belvin actually told
Plaintiff that she agreed with Plaintiff that politics was a motivating factor in the School Board’s
denial of her request. (Exhibit 1 at ¶¶17-19).
11. Because Plaintiff believed that she was being discriminated against on the
basis of her political speech and activities, she engaged counsel to help her resolve the issue.
She hoped that with the help of counsel, the School Board would either work with her to create a
flexible schedule like that which was provided to Ms. Seidl, or at least would provide her an
opportunity to present the issue to the School Board in person. Either result would likely have
satisfied Plaintiff and would have avoided this lawsuit. (Exhibit 1 at ¶ 19).
12. Beginning in February 2006, Plaintiff’s counsel wrote a number of letters
and emails to the School Board and its lawyer, asking either that the School Board grant her
request or at least give her an opportunity to meet with the School Board to discuss her request
and hear an explanation for the denial. The Defendants and their lawyers sometimes failed to
respond to these letters for months, and when they did respond, they even denied Plaintiff’s
reasonable and simple request that she be allowed to discuss the situation rationally with the
Board. (Id., Exhibit 11).
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13. In February 2006, Plaintiff’s attorney wrote a letter to the School Board in
which he warned that the School Board’s policy and differential treatment of Plaintiff appeared
to violate her constitutional rights. Nevertheless, the Defendants still refused to even meet with
Plaintiff or to consider her request. (Exhibit 11). The Board did not even evaluate if Plaintiff’s
request was feasible as compared to Ms. Seidl’s. (Exhibit 6 at 39-41). Nor did they review her
duties and job description to see if there was work Plaintiff could perform outside of normal
school hours. (See Exhibit 15, at pgs. 15-16; Exhibit 6 at pgs. 31-34; Exhibit 3 at pgs 22-24).
Instead, they purported to deny Plaintiff’s request based solely on the fact that her request asked
that she be allowed to make up time missed for politics, which the Defendants claimed was
absolutely prohibited by Policy GBG (even though this policy was silent on making up time).
(See Exhibit 2 at pgs 25-27; exhibit 3 at pgs 23-24; Exhibit 4 at pgs. 46-47; Exhibit 5 at pgs 12-
17, Exhibit 6 at 35-40).
14. After months of the School Board’s continuing refusal to even meet with
Plaintiff, Plaintiff’s counsel sent the School Board a draft of a potential lawsuit alleging violation
of Plaintiff’s constitutional rights and also alleging a separate breach of contract. (Exhibit 11).
Still, the Board not only refused to grant Plaintiff’s request for the same flexible schedule given
to Seidl, but they continued their irrational and spiteful refusal to even meet with her, even at the
cost of an impending lawsuit. (Exhibit 1 at ¶¶ 19-20). The Board was treating the situation as a
battle of political wills.
15. On May 10, 2007, Plaintiff filed her Complaint. She chose not to serve
the Complaint, instead giving the School Board further time to agree to give her the simple
courtesy of a chance to explain her position. The School Board has continued in its refusal to
meet with Plaintiff. Their only explanation has always been that policy GBG requires that
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political time be taken as unpaid time off. The Defendants claim that, even though the policy is
admittedly silent on whether this time could be made up, they interpreted the policy as
prohibiting made up time in political situations. Thus, based on the School Board’s interpretation
of the policy, political participants will never be given the opportunity to work a flexible
schedule under any circumstances, while all other employees may be allowed to work a flexible
schedule. (See Exhibit 2 at pgs 25-27; exhibit 3 at pgs 23-24; Exhibit 4 at pgs. 46-47; Exhibit 5
at pgs 12-17, Exhibit 6 at 35-40). Therefore, the policy as interpreted by the Defendants, facially
discriminates against political participants. Plaintiff has continued to request that she be allowed
to make up time each time she takes unpaid time off. The School Board has continued to deny
these requests. (Exhibit 1 at ¶¶ 19-21).
Facts Relating to Personal Political Animus towards Plaintiff
16. In February 2006, just months after Plaintiff made her first request and
weeks after Plaintiff’s counsel wrote to pursue Plaintiff’s request, Defendant Kevin Smith met
with BOS member Michelle Ressler to discuss the School Board budget. During this
conversation, Smith brought up Plaintiff’s request to Ms. Ressler. Smith stated that Plaintiff’s
request was no longer being viewed as a personnel issue, but had become a personal issue.
Smith stated that he perceived Plaintiff’s request as a political threat that, if the School Board did
not give Plaintiff what she wanted, then Plaintiff would make sure that the BOS would not give
the School Board what it wanted (a liberal budget). Mr. Smith stated again to Ms. Ressler that
the issue with Altemus had become “personal” and that he was “tired of it.” Smith also stated
that he viewed Plaintiff’s voting on the School Board budget as a BOS member as a conflict of
interest. (See Ressler memo and deposition attached as Exhibit 12).
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17. Defendant Jean Pugh has testified that she believes the BOS had “treated
us (the School Board) like we were dirt.” (Exhibit 5 at pgs. 7-8). Defendant Ronnie Cohen
wrote a letter to the Board of Supervisors concerning the School Board Budget. Ms. Cohen
wrote that she believed Plaintiff had a personal political vendetta against the School Board.
(Exhibit 3 at pgs. 13-16). Defendant A.J. McGlohn believes that Plaintiff has attempted to use
her political position to obtain special treatment and he believed this was a conflict of interest.
(Exhibit 4 at pgs 19-21). McGlohn also testified that the atmosphere between the School Board
and the BOS was sometimes so tense that “you could cut (it) with a knife.” (Id. at 32-33). Board
Member/Defendant Ann Burress states that the Board has previously treated Plaintiff differently
as a “good PR piece” and that she viewed certain of Plaintiff political activity as being of an
“undignified, ruthless and vile manner.” (Exhibit 6 at pgs. 50-54, pgs. 21-22). Board Member
Starr Belvin actually admitted to Plaintiff that she believed the School Board’s denial of
Plaintiff’s request was politically motivated. (Exhibit 1 at ¶ 18).
18. These are facts from which a reasonable jury could infer that the majority
of the School Board was not evaluating Plaintiff’s requests rationally as a “personnel” issue, but
instead were basing their decisions on “personal” political animus towards Plaintiff. This would
be a reasonable inference for a jury to draw based not only on these comments, but on the fact
that the School Board stubbornly refused to even meet with Plaintiff even when they knew that
such refusal to meet would lead to a lawsuit.
19. In the Defendants’ Answer to Plaintiff’s Complaint and in their Motion to
Dismiss, Defendants highlighted the fact that politics (and disdain for Plaintiff’s political
activity) was central in Defendants’ decision to deny her request and refuse to meet with her.
Defendants argued in their Answer and their Motion to Dismiss that Plaintiff should not be able
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to recover because Plaintiff’s political activity itself was an illegal conflict of interest, and
therefore they claimed, Plaintiff was barred by the so-called illegal acts doctrine. Thus,
Defendants themselves admit in their Answer and in their Motion to Dismiss that they disagree
so substantially with Plaintiff’s political activity, that they believe it be illegal. (See Answer at
pg. 2, Memo in Support of Motion to Dismiss at pgs. 14-15).
Facts Related to Plaintiff’s Breach of Contract Claim
20. Prior to November 2004, Plaintiff worked teachers’ hours (37.5 hours per
week) at the direction of her school principal. Plaintiff’s Principal has admitted that “As
Principal of Gloucester High School and her immediate supervisor, I instructed Teresa Altemus
to work 37.5 hours a week from December 13 2000 to November 10, 2004. (Exhibit 1 at ¶¶ 25-
29, Memo signed by Principal King attesting to this fact, Attached as Exhibit 16). In November
2004, following an FLSA/overtime audit, Plaintiff was informed that TAs were only supposed to
be working 32.5 hours per week, and that this was all they were getting paid for. Thus Plaintiff
worked five extra hours per week for which she received no pay. (Id.)
21. Plaintiff believed that her principal had the authority to tell her what hours
to work. Indeed, the School Board Policy related to work hours stated that “The number of
hours and days that employees work will be determined by the School Board and the
administration.” (Policy GBJ, attached as exhibit 17). Furthermore, prior to November 2004,
Plaintiff’s written employment contract was silent about the number of hours she was supposed
to be working. (2004 contract, attached as exhibit 18.) Defendants admit that Plaintiff was only
paid 32.5 hours per week. (Exhibit 8 at pgs 27-37).
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Plaintiff’s Listing of Disputed Facts from Defendants’ Brief2
22. Plaintiff has created a genuine issue of material fact as to whether all
Defendants’ are individually liable because all Defendants were on notice that their actions
violated Plaintiff’s Constitutional Rights. (Exhibit 11). In addition, Defendants Smith,
McGlohn, Burress, Pugh, and Cohen have engaged in malicious actions which would
independently subject them to liability individually. (See ¶¶ 16-19 above).
23. There is no dispute that Plaintiff was required to work 37.5 hours per week
but was only paid for 32.5. However material facts are in dispute as to whether Plaintiff’s school
principals had the apparent authority to require her to work five extra hours. (Exhibit 1 at ¶¶ 27-
29; Exhibit 17).
24. Defendants make the bald assertion that “Plaintiff’s requests to make up
time are not constitutionally protected” and therefore, they contend, her constitutional rights
were not violated. Contrary to this assertion, genuine issues of material facts exist as to whether
the differential treatment of Plaintiff is supported by compelling reasons, and whether the School
Board’s refusal to meet with Plaintiff and its continuing denials of her requests were politically
motivated and or based on personal political animus. (See ¶¶ 16-19 above).
25. Plaintiff disputes the Defendants’ factual contention that GBG on its face
prohibits the making up of time. (Exhibit 10). However, it is undisputed that Defendants claim
to interpret the policy as prohibiting all political actors from making up time missed for political
2
Because Defendants have violated local rule 56(B) it is difficult to determine exactly which facts Defendants
contend are undisputed. However, Plaintiff asserts that the following material facts and issues which Defendants at
least mention in their Brief are in dispute. Although Plaintiff is responding to each purportedly undisputed “fact,”
Defendants have often stated these “facts” in the form of sweeping unsupported assertions without citation to the
record.
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activities under any circumstances, while non-political actors may be able to make up time. (See
Exhibit 2 at pgs 25-27; exhibit 3 at pgs 23-24; Exhibit 4 at pgs. 46-47; Exhibit 5 at pgs 12-17,
Exhibit 6 at 35-40).
26. Plaintiff disputes that she ever requested the right to make up an unlimited
amount of time. All she requested was a flexible schedule, and to have a conversation where she
be either given a rational explanation for the denial of her request, or be allowed to fashion a
schedule that protected the School Board’s and her own interest. (Exhibit 1 at ¶ 27; Exhibit 11).
27. Defendants claim that it would be disruptive or otherwise not feasible to
have Plaintiff work at other than normal school hours. Plaintiff disputes this claim and asserts
that genuine issues of fact remain as to this issue. Defendants have admitted that Plaintiff’s
duties could be performed outside of normal school hours. (Exhibit 8 at pgs. 59-67; Exhibit 13
at 40-42. Further, Defendants allowed Ms. Seidl to make up time before and after normal school
hours. (Exhibit 1 at ¶¶ 7-9, Exhibit 8 at pgs. 59-67, Exhibit 13 at 40-42, Exhibit 14). In addition,
Plaintiff’s job description and emails from Joe Snare and Melissa Seidl demonstrate that the
work could be performed outside of normal school hours. (Exhibit 14, Exhibit 9).
III. LEGAL ANALYSIS
A. Standard for Summary Judgment
Summary Judgment is not appropriate where there are genuine issues of material fact
under which “a reasonable jury could return a verdict for the nonmoving party,” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248(1986). Summary Judgment is also not appropriate even
where material facts are not in dispute but where there is a dispute as to the reasonable
conclusions to be drawn from these facts. Overstreet v. Kentucky Cent. Life Ins. Co., 950 F.2d
931, 937 (4th Cir. 1991). In analyzing a Motion for Summary Judgment, the non-moving party
is entitled “to have the credibility of his evidence as forecast assumed, his version of all that is in
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dispute accepted, all internal conflicts in it resolved favorably to him, the most favorable of
possible alternative inferences from it drawn in his behalf; and finally, to be given the benefit of
all favorable legal theories invoked by the evidence so considered.” Id.
B. Defendants Violated Plaintiff’s First Amendment Rights by Denying Her

Requests Because of Her Political Speech and Affiliation
Plaintiff has, at a minimum, created genuine issues of material fact on her First
Amendment claim because the evidence in this case demonstrates that the Defendants denied
Plaintiff a valuable benefit given to similarly situated employees because of politics. First, the
Defendants all claim to have based their denial of Plaintiff’s request and their refusal to meet
with her exclusively on Policy GBG, which they all claim to interpret as absolutely prohibiting a
person serving on a political body from ever making up time. (See Exhibit 2 at pgs 25-27;
exhibit 3 at pgs 23-24; Exhibit 4 at pgs. 46-47; Exhibit 5 at pgs 12-17, Exhibit 6 at 35-40, Exhibit
15 at 15-16). Thus, Defendants have essentially conceded that the reason that they denied
Plaintiff’s request to make up time was because her request related to making up time missed for
political activities. This alone establishes a First Amendment violation. Second, the evidence is
such that a reasonable jury could conclude that the reason that the Defendants chose to
discriminatorily apply their policy was because of the majority of the School Board’s personal
political animus towards Plaintiff.
1. Defendants Have Essentially Conceded that They Denied

Plaintiff’s Request Because of her Political Activities
Plaintiff has alleged that she was subjected to an adverse employment action (being
denied the opportunity to work all of the hours established by her contract) because of her
political participation. As the Fourth Circuit has long recognized:
A public employee's claim that an adverse employment decision was motivated by the
exercise of the employee's First Amendment right of political affiliation is analyzed
under the burden-shifting framework set forth in Mt. Healthy City School District Board
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of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568(1977). In order to prevail under Mt.
Healthy, the plaintiff must first establish by a preponderance of the evidence: (1) that the
plaintiff's conduct at issue was constitutionally protected, and (2) that it was a substantial
or motivating factor in the employment decision. Once this burden is met, the defendant
may escape liability only by proving by a preponderance of the evidence that the same
employment action would have been taken absent the protected conduct. Chadwell v.
Lee County Sch. Bd., 535 F. Supp. 2d 586, 597(W.D. Va. 2008)(quoting Cooper v. Lee
County Bd. of Supervisors, No. 98-2083, 1999 WL 631240, at * 6 (4th Cir. Aug.19,
1999).
At a minimum, the evidence in this case clearly creates jury issues both on whether
Plaintiff’s political activity was a substantial or motivating factor in the Defendants’ decision to
deny her requests to be given the same benefits as Seidl,3 and whether the Defendants would
have taken the same employment action absent Plaintiff’s political activity.
Plaintiff Can Establish Mt. Healthy’s First Element: Plaintiff Engaged in Protected Activity
Plaintiff can easily establish the first prong of the Mt. Healthy test. Plaintiff’s lawsuit
alleges that the Defendants took adverse action against her because of her service, votes, speech
and activities as an elected member of the BOS. It is indisputable that these activities are at the
core of the activities and speech protected by the First Amendment. See Elrod v. Burns, 427
U.S. 347, 359-60, (1976 ((t)he First Amendment protects political association as well as political
3
It is important to note as a threshold matter a number of disputed facts previously cited. First, genuine issues of
fact exist as to whether there was work that could be performed outside of normal School Hours (i.e. whether
Plaintiff’s request was feasible.) Both Dr. Kiser and Joe Snare (Plaintiff’s supervisor) have admitted that Melissa
Seidl was allowed to make up work outside of her normal work schedule, making up as much as seven hours per
week. (See Factual ¶¶ 3,5,6 above) Moreover, Defendants admit that Seidl had the exact same job responsibilities
as Plaintiff, and that many of these responsibilities could be performed outside of normal school hours. ( ¶¶ 3,5,6
above) Defendants’ claim that allowing Plaintiff to make up time would be overly disruptive is a red herring. First,
they have allowed Seidl to work outside of normal school hours. ( ¶¶ 3,5,6 above). Next, the Defendants even
agreed to allow Plaintiff to work a similar schedule until they learned that the request was to make up political time.
(Exhibit 9) Moreover any attempt to claim that Altemus’ request was somehow different or more burdensome than
Seidl’s is also a red herring for two reasons. First, every Defendant claims that they based their decision exclusively
on policy GBG which they interpreted as prohibiting the making up of time missed for political service under any
circumstances. (¶9 above). More importantly, the Defendants admitted that in denying Plaintiff’s request, they
never compared the feasibility of her request with that of Ms. Seidl, (Exhibit 6 at 39-41) and that they never
even reviewed Plaintiff’s job description or duties. (¶ 9 above). Thus any attempt to distinguish the two situations
is a post hoc rationalization, which itself leads to an inference of pretext. See Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 143-50 (2000)(differing excuses for allegedly discriminatory actions provided at different times
over the course of the litigation is evidence of pretext).
17
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expression. These protections reflect our profound national commitment to the principle that
debate on public issues should be uninhibited, robust, and wide-open”); Republican Party of
N.C. v. Martin, 980 F.2d 943 (4th Cir. 1992). (“[T]here is practically universal agreement that a
major purpose of [the First] Amendment [is] to protect the free discussion of governmental
affairs. This of course includes discussions of, ... the manner in which government is operated or
should be operated, and all such matters relating to political processes.")
Notwithstanding Plaintiff’s clear protected activity, Defendants have disingenuously
asserted that the real issue in this case is whether Plaintiff has a constitutionally protected right
to “make up time.” See Defendants’ Brief in Support at pgs 12-13. Of course Plaintiff, like all
employees, has no constitutional right to a job or even to the opportunity to make full pay in that
job. What is constitutionally protected, however, is Plaintiff’s right to not be subjected to an
adverse employment action, because of her First Amendment speech, affiliations, or
participation. The Supreme Court of the United States has stated this principle as follows:
This Court has made clear that even though a person has no "right" to a valuable
governmental benefit and even though the government may deny him the benefit for any
number of reasons, there are some reasons upon which the government may not act. It
may not deny a benefit to a person on a basis that infringes his constitutionally protected
interests-- especially, his interest in freedom of speech. For if the government could deny
a benefit to a person because of his constitutionally protected speech or associations, his
exercise of those freedoms would in effect be penalized and inhibited. This would allow
the government to "produce a result which [it] could not command directly." Speiser v.
Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 1342 (1958)
Therefore, if Defendants took adverse action against Plaintiff because of her service or
speech on the BOS, such an action would violate her constitutionally protected rights.
Defendants’ Denial of Plaintiff’s Request Constitutes an Adverse Employment Action
The Defendants’ denial of Plaintiff’s request constituted a sufficiently severe adverse
employment action so as to constitute a Constitutional violation. It noteworthy that the standard
for what constitutes an actionable “adverse employment action” is significantly lower in First
18
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Amendment cases than it is even under the Federal Discrimination Statutes. Rivera-Jimenez v.
Pierluisi, 362 F.3d 87, 94 (1st Cir. 2004). The relevant question in First Amendment cases is
whether a reasonable person in Plaintiff’s situation might be deterred by the Defendants’ conduct
from fully exercising their First Amendment rights. Plaintiff is not even required to demonstrate
that she was personally dissuaded from engaging in protected activity by Defendants actions,
only that a reasonable jury could conclude Defendants’ conduct might have the effect of chilling
the First Amendment speech of a reasonable person in Plaintiff’s situation. Morrison v. Johnson
429 F.3d 48, 50-52 (2d. Cir. 2005).
The Defendants have denied Plaintiff a valuable benefit that is available to other
employees. Despite needing to miss substantial amounts of time during normal school hours, the
School Board has allowed Melissa Seidl to work a flexible schedule outside of normal school
hours so that she could work all hours provided for in her contract. Ms. Seidl was thereby able
to earn the full amount of compensation provided for in her contract. (See ¶¶ 4-6 above.) On
the other hand, the Defendants have refused to even consider the merits of Plaintiff’s request to
enjoy the same benefit and they have denied her the benefit of working any form of similarly
flexible schedule. Thus, unlike Seidl, Plaintiff is disallowed from working the full extent of her
hours. (See ¶¶ 4-6 above.) The Defendants’ refusal to treat Plaintiff like Ms. Seidl and other
employees has cost Plaintiff thousands of dollars a year. (Exhibit 1 at ¶ 11).
Numerous courts have found that government actions which decrease an employee’s
compensation rise to the level of an actionable adverse employment actions. Bernheim v. Litt,
79 F.3d 318, 325-26, (2d Cir. 1996) (impairment of earning potential constitutes adverse
employment action), Hulbert v. Wilhelm, 120 F.3d 648, 654-55 (7th Cir. 1997) (lower
performance evaluation and lower cost of living salary increase constitute adverse job actions);
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Lieberman v. Reisman 857 F.2d 896 (2d Cir. 1988) (refusal to pay for earned vacation and
compensatory time rises to the level of constitutional violation). Indeed Courts have found that
numerous actions much less severe that that to which the School Board subjected Plaintiff rose to
the level of a Constitutional violation. Yoggerst v. Stewart, 623 F.2d 35, 39 (7th Cir.1980)
(verbal reprimand and notation in a state agency employee's personnel file “may have had a
chilling effect, which is legally cognizable, upon her exercise of free speech”); Forsyth v. City of
Dallas, 91 F.3d 769, 774, (5th Cir. 1996) ( being denied better working hours can be a
component of an adverse employment action).
Requiring an employee who serves on a political body to submit to less than full pay,
could easily have a chilling effect on a School Board employee’s desire to run for or serve on a
political body or to speak freely when serving on that body.4 Indeed, the Defendants’ actions
have forced Plaintiff herself to question whether being politically active and speaking freely on
the BOS is worth the financial and emotional toll it has caused her as a School Board employee.
(See Exhibit 1 at ¶ 24).
Politics Was a Substantial Factor in Defendants’ Denial of Plaintiff’s Request
Having at a minimum established that Plaintiff’s political activity, speech and affiliation
are protected and that she has been subjected to a sufficiently adverse employment action,
Plaintiff must also demonstrate that her protected activity “was a substantial or motivating factor
in the employment decision.” The Plaintiff is not required to produce direct evidence of unlawful
motive. Instead, “a motive, intent, or design to violate a person's constitutional rights may be
4
Plaintiff’s case is not the only example of actions by the School Board intended to chill First Amendment rights.
BOS member Gregory Woodard is employed as a substitute teacher. Like all substitute teachers, Woodard only
works when the School Board calls him into to school. After Woodard, like Altemus, voted in favor of categorical
funding for the School Board (a decision which infuriated the School Board), he did not receive a single call to serve
as a substitute teacher. However, only after changing his vote back to lump sum funding did he again begin
receiving work from the School Board. (Exhibit 12 at pgs 19-22).
20
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shown from circumstantial evidence. To prove that political affiliation or activities was a
substantial or motivating factor in the decision, a plaintiff does not have to prove that was the
only reason the decision was made. The plaintiff need only prove that her political affiliation or
activities was a substantial consideration that made a difference in or influenced the decision.”
Chadwell v. Lee County Sch. Bd., 535 F. Supp. 2d 586, 597(W.D. Va. 2008).
Resolution of this issue is simple, because every single School Board member testified
that they based their decision to deny Plaintiff’s request on policy GBG. (See e.g. Exhibit 2 at
pgs 25-27; exhibit 3 at pgs 23-24; Exhibit 4 at pgs. 46-47; Exhibit 5 at pgs 12-17, Exhibit 6 at
35-40, Exhibit 15 at 15-16). Moreover, each testified that, although the policy is silent as to the
ability of an employee to make up time, they interpreted the policy as absolutely prohibiting an
employee who engages in political activities from ever being considered for a schedule like
Seidl’s under any circumstances. Id. The Defendants have admitted that Melissa Seidl was
allowed to work a flexible schedule in which she was permitted to make up time before or after
normal school hours. (See ¶¶ 4-6 above). Thus there is certainly a factual issue as to whether
such a schedule was possible.
Perhaps most importantly, Defendants cannot maintain the position that they denied
Plaintiff’s request because Ms. Seidl’s situation was somehow different on some legitimate basis
other than politics. This is because Defendants never compared the relative merits or feasibility
of Plaintiff’s request with that of Seidl, and never even reviewed Plaintiff’s job description or
duties to determine if work could be made up. (Exhibit 6 at 31-34 and 39-41, Exhibit 15, at pgs.
15-16; Exhibit 3 at pgs. 22-24). Instead, all admit that they denied Plaintiff’s request and
stubbornly refused to even grant her an audience expressly because her leave was political, and
thus allegedly covered by policy GBG. Therefore, Defendants have essentially conceded that
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they denied Plaintiff’s request because it was a political request. The fact that Defendants
absurdly claim that their denial was not based on politics but instead on a policy which was
100% about politics, does not shield them from liability. Numerous courts have held that a
government actor may not hide behind a policy or statute when the application of that policy has
a discriminatory effect on citizens. See Capitol Square Review & Advisory Bd. v. Pinette, 515
U.S. 753, 777 (1995) (a state may not “hide behind the application of formally neutral criteria
and remain studiously oblivious to the effects of its actions.”); Allen v. Bd. of Educ., 584 S.W 2d
408, 410 (Ky. Ct. App. 1979)(School Board’s application of policy which required teachers to
take unpaid leave of absence for political participation violates First Amendment).
Defendants’ Denial was Based on Personal Political Animus towards Plaintiff
As discussed in the preceding section, even if Defendants are taken at their word that
their denial of Plaintiff’s request was based solely on their discriminatory interpretation of Policy
GBG, this would still constitute a denial of valuable benefit because of politics in violation of
Plaintiff’s First Amendment rights. In addition to this basis for liability, a reasonable jury could
conclude that the Defendants denied Plaintiff’s rights not just because of politics but because of
a personal animus against Plaintiff based on her political activity and speech.
The first piece of evidence from which a jury could find such animus is the February 23,
2006 conversation between Defendant Kevin Smith (a School Board Member) and Michelle
Ressler (a member of the BOS). During this conversation the following dialogue occurred:
Smith: I am going to tell you something but you cannot tell anyone else. I will know because it
will get back to me.
Ressler: Well maybe I should not be hearing this.
Smith: No you just can’t tell anyone… This personnel situation with Mrs. Altemus has become
personal. She is making it personal. From my perception… Altemus is saying that, unless the
School Board gives me what I want, I will not give them what they want (referring to the School
Board Budget)… This is not a personnel issue, but a personal issue. And I am getting tired of
22
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it… Now Ms. Altemus cannot know this, but there are members of the School Board who are
supporting her. (See Exhibit 12, including Ressler depo. at 15-21; Exhibit 2 at 16-23).
Mr. Smith went on to say that he believed that it was a conflict of interest for Plaintiff to
vote on the School Board budget, because she was an employee. Ms. Ressler perceived this
conversation as an attempt by Mr. Smith to cause her to not trust Plaintiff. Ressler stated that the
entire School Board had been trying to “cause friction between Mrs. Altemus and myself in an
attempt to divide and conquer,” and that this was all related to the budget. Later, during his
deposition, Smith admitted that he believed the relationship had gotten much worse between the
School Board and the BOS over funding issues.5 (See Exhibit 12, including Ressler depo. at 15-
21; Exhibit 2 at 16-23).
Defendant Ronnie Cohen admitted that she felt that Plaintiff had “a personal vendetta”
against the School Board. (Exhibit 3 at pgs. 13-16) Likewise, Defendant Jean Pugh put her
feelings about the BOS this way:
The treated us like we were dirt… Like when we would have a budget meeting and talk
about the category, we would meet in the old courthouse and they would be sitting on the
horseshoe and they would put us down in the pit down here underneath them and they
would sit there and look down at us. That doesn’t make you feel very good. (Exhibit 5 at
pgs. 7-8).
Defendant A.J. McGlohn testified that he believed that Plaintiff had attempted to use her
position on the BOS to get special benefits as an employee of the School Board. He also stated
that the tension with the BOS was sometimes so thick that “you could cut (it) with a knife.”
(Exhibit 4 at pgs 19-21, 32-33). Defendant Ann Burress stated that she viewed certain of
Plaintiff’s political activity as being of an “undignified, ruthless and vile manner.” (Exhibit 6
5
In his deposition, Mr. Smith utterly denied that the conversation with Ms. Ressler ever happened. However, for
purposes of summary judgment , the Court must take Ressler’s side of the story as true and furthermore must draw
the most favorable of possible alternative inferences from Smith’s statement. Therefore, Smith’s denial that the
conversation occurred at all, is actually probative of the real underlying discriminatory animus.
23
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at pgs. 50-54, pgs. 21-22). Finally, Defendant Starr Belvin actually admitted to Plaintiff that she
believed the School Board’s denial of her request was politically motivated. (Exhibit 1 at ¶18).
Some of these statements constitute direct evidence of discrimination. However,
discrimination need not be supported by direct evidence because Defendants are rarely willing to
admit that they violated legal rights. Therefore, it axiomatic that the “requisite political
motivation, as any state of mind, can be proved by circumstantial evidence.” Sales v. Grant 158
F.3d 768 (4th Cir. 1998). The statements quoted above could lead a reasonable jury to infer and
conclude that, as stated by Mr. Smith, the School Board (or at least a majority thereof) did not
treat Plaintiff’s request as they would any normal personnel matter, and that they did not really
even base their decision on their discriminatory policy. Instead, Defendants denied her claim
based on personal political reasons. They viewed some of her decisions as “vile” and this time
they would sit above her and make her “feel like dirt.” These inferences are quite reasonable
when seen in light of the School Board’s refusal to even meet with Plaintiff even in the face of a
threatened lawsuit. A jury could easily conclude that, had Plaintiff been the average employee,
the School Board would have agreed to meet with her and would have treated her request just
like that of Ms. Seidl.
For these reasons, Defendants’ Summary Judgment Motion should be dismissed as to
Plaintiff’s First Amendment Claim.6
6
A jury could also reasonably conclude that Defendants’ purported rationale for denying Plaintiff’s request is
nothing more than a post hoc rationalization. Defendants argue that allowing Plaintiff to make up time would be
“disruptive.” However they have admitted that Seidl was allowed to make up time and that many duties could be
performed outside of normal school hours. Any attempt to distinguish Seidl from Altemus is also pretextual,
because it has been admitted that the Defendants never compared the relative merits of the two claims and were not
even familiar with Plaintiff’s job duties. Thus Defendants cannot establish that they would have taken the same
actions if Plaintiff did not engage in protected activity. (See ¶ 9 above).
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C. Defendants Have Denied Plaintiff Equal Protection under The Law
For many of the same reasons, Plaintiff has created a jury issue under her equal
protection claim. The Defendants assert that Policy GBG absolutely prohibits a person serving
politically from making up time missed for political activities. On the other hand, it is admitted
that Melissa Seidl has been allowed to make up time. Thus, policy GBG, as interpreted by the
Defendants, subjects a class of individuals (those who serve on political bodies) to differential
treatment as compared to other employees. Plaintiff has alleged that Defendants’ application of
the policy denies her (and any other political actors) equal protection under the law.
The Equal Protection Clause of the Fourteenth Amendment “commands that no State
shall deny to any person within its jurisdiction the equal protection of the laws, which is
essentially a direction that all persons similarly situated should be treated alike.” City of
Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). Defendants concede that if
“Plaintiff had been denied her fundamental rights of free speech and association” strict scrutiny
analysis would apply. (Defendants’ Brief at pg. 19). Strict scrutiny requires the School Board to
demonstrate that its policy is (1) narrowly tailored to (2) serve a compelling state interest.
Indeed, the Supreme Court has stated that “the decisions of this Court have consistently held that
only a compelling state interest in the regulation of a subject within the State's constitutional
power to regulate can justify limiting First Amendment freedoms.” Williams v. Rhodes, 393
U.S. 23, 31 (1968).
Defendants’ policy is neither narrowly tailored nor serves a compelling state interest.
Defendants interpret policy GBG as prohibiting people serving on a political body from ever
making up time. They also admit that other employees have been allowed to make up time.
While Defendants have some interest in ensuring that their schools are fully staffed, this interest
25
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is not at issue because the Defendants have granted Plaintiff the time off. Defendants do not
have a compelling interest in prohibiting all political actors from making up time no matter what
the circumstances. Moreover, according to Defendants, the policy does not give the Board the
discretion to separate easily facilitated requests by political actors from those that significantly
interfere with school operation. Instead, the Defendants interpret the policy to prohibit political
actors from ever making up time, no matter what the circumstances. (See ¶¶5-9 above). This is
the antithesis of narrow tailoring, as the policy goes much further than necessary to protect any
legitimate school interest.7
D. Defendants Are Individually Liable and Are Not Entitled to Qualified

Immunity
The Supreme Court has held that a public official is not immune from liability for
damages under 42 U.S.C. § 1983 (1) if he knew or reasonably should have known that the action
he took within the sphere of his official responsibility would violate constitutional rights, or (2) if
he took the action with the malicious intention to cause a deprivation of those rights. Wood v.
Strickland, 420 U.S. 308, 322 (1975).
All Defendants knew or should have known that their continued denials of Plaintiff’s
requests on the basis of politics and their outright refusal to even discuss the issue with her
violated Plaintiff’s Constitutional Rights. In February 2006, Plaintiff’s counsel put Defendants
on notice of this fact when he sent a letter warning them that they were violating Plaintiff’s
constitutional rights. (Exhibit 11). Thus, Defendants cannot argue that they should not have
known that their actions violated Plaintiff’s constitutional rights.
7
Indeed, a policy such as GBG would not even survive rational basis analysis. See Allen v. Board of Education of
Jefferson County, 584 S.W.2d 408, 410 (Ky.App., 1979)(requiring teachers running for office to take a mandatory
leave of absence while not requiring teachers engaged in other time consuming activities to take leave is not rational
when there is no showing that political campaigning is the only activity which would adversely affect education.).
26
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Moreover, a reasonable jury could conclude that Defendants Smith, Pugh, McGlohn,
Cohen, and Burress acted with malicious intention to deny Plaintiff a valuable right. (See ¶¶ 16-
19 above.) A reasonable jury could thus conclude that these Defendants are personally liable on
this independent basis as well.
The School Board has Breached Plaintiff’s Employment Contract
Finally, the School Board has breached its employment contract with Plaintiff and has
breached its duty to pay Plaintiff for all hours worked. It is undisputed that Plaintiff signs a
yearly written employment contract with the School Board each year. (Exhibit 18, Exhibit 8 at
pgs 27-37). This contract provides that the School Board will provide Plaintiff an hourly wage
for all hour worked. Since 2005, Plaintiff’s yearly contract has specifically listed that she is
expected to work 32.5 hours per week. Id. However, up until November of 2004, Plaintiff’s
contract did not specifically contain the number of hours she was expected to work, or the
number of hours for which she was being paid. (Exhibit 18). School Board policy provides that
the hours of work are to be set by the School Board and the administration. (Exhibit 17). Prior
to November 2004, Plaintiff and all other TAs were required to work “teacher’s hours,” or 37.5
hours per week. (Exhibit 16, Exhibit 1 at ¶¶ 25-29). Indeed, Plaintiff worked these hours
because her school principal required her to. According to Principal Jean King, “As principal of
Gloucester High School and her immediate supervisor, I instructed Teresa Altemus to work 37.5
hours a week from December 13, 2000 to November 10, 2004.” (Exhibit 16).
However, after conducting an FLSA compliance audit in the fall of 2004, the School
Board informed Plaintiff that she and the other TAs were only supposed to be working 32.5
hours per week. The School Board admits it never paid Plaintiff for the hours between 32.5 and
37.5. (Exhibit 8 at pgs 27-37). Thus the School Board breached its contract of employment with
27
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Plaintiff by failing to pay her for all hours she worked, and put conversely by requiring her to
work additional hours without additional pay. Obviously, this diminished pay caused damage to
Plaintiff.
Thus, at a minimum, Plaintiff has created genuine issues of fact on all three elements of
her Breach of Contract claim: A contractual obligation (Exhibit 18), a breach of that obligation
(the failure to pay Plaintiff for all hours she worked under the contract) and damages (the
diminished pay). See Hamlet vs. Hayes, 273 Va. 437, 442, 641 S.E.2d 115 (2007).
Notwithstanding the fact that the School Board cannot dispute that Plaintiff worked the
extra hours, and that it failed to pay her for these hours, the School Board attempts to escape
liability by making the grand (and absurdly broad) assertion, without citation that “The concepts
of contract law which are normally applicable to private parties are not applicable to public
entities.” (Defendants’ Brief at pg. 9.) Next, Defendants claim that Plaintiff’s contract clearly
provided on its face that Plaintiff was only authorized to work 6.5 hours per day. However, the
School Board only began listing the exact number of hours expected per day in 2005, after it
discovered that it was underpaying (or overworking) its TAs. (Exhibit 18, Exhibit 1 at ¶¶ 25-29).
All yearly contracts prior to 2005 did not include the number of hour per day for which Plaintiff
was being paid.
Finally, Defendants claim that Plaintiff’s Breach of Contract claim must fail because
Principal Jean King was not authorized to allow Plaintiff to work extra hours, and thus no new
contractual obligation was created. First, this argument misses the point. Plaintiff does not
allege that Principal King created a new contract. Instead, the School Board breached its
contract by failing to pay her for all hours they required her to work.
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Moreover, it is absurd to argue that Plaintiff should have known (1) that she was not
authorized to work 37.5 hours, or (2) that her principal was not authorized to tell her what hours
to work. First, her 2004 contract was silent as to the number of hours for which she was being
paid. Second, even Policy GBJ states that the “number of hours… that employees work will be
determined by the School Board and the administration.” (Exhibit 17). Even if Plaintiff’s
Principal did not have the actual authority (which is not clear from the record), she was clothed
with apparent authority to direct the activities of the employee at her school. Under Virginia
law, the general rule is that between the principal, the agent, and third persons, the rights and
liabilities are governed by the apparent scope of the agent’s authority. See Wright v.
Shortridge, 194 Va. 346, 352 (1952). Perhaps most importantly, the School Board is responsible
for paying Plaintiff, like all non salaried employees, for all hours it permits her to work, knows
she is working, and even all hours it should know she is working. See Truslow v. Spotsylvania
County Sheriff, 783 F.Supp. 274, 278 (E.D.Va.1992) (“The crucial question is not whether the
work was voluntary, but rather whether the plaintiff was in fact performing services for the
benefit of the employer with the knowledge and approval of the employer”).
IV. CONCLUSION
Based on the foregoing, Plaintiff requests that this honorable Court deny Defendants’
Motion for Summary Judgment as to all Counts.
Respectfully submitted,
TERESA ALTEMUS
By: /s/ David A. Kushner

David A. Kushner (VSB #71173)
Wm. E. Rachels, Jr. (VSB 4282)
Attorneys for Teresa Altemus
WILLCOX & SAVAGE, P.C.
One Commercial Place, Suite 1800
29
I-829112.1
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Norfolk, Virginia 23510

757-628-5500 (T)
757-628-5566 (F)
dkushner@wilsav.com
CERTIFICATE OF SERVICE
I hereby certify that on the 8th day of August, 2008, I will electronically file the
foregoing with the Clerk of Court using the CM/ECF System which will then send a notification
such filing (NEF) to the following:
Abbigale Bricker Fredrick

John A. Conrad
Attorneys for Defendants
The Conrad Firm
1520 W Main St
Suite 204
Richmond, VA 23220
afredrick@theconradfirm.com
jconrad@theconradfirm.com
30
I-829112.1
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Altemus SB Brief

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Case 4:08-cv-00005-MSD-FBS Document 29 Filed 08/08/2008 Page 1 of 30

IN THE UNITED STATES DISTRICT COURT

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

GLOUCESTER COUNTY SCHOOL BOARD, Et Al

PLAINTIFF TERESA ALTEMUS’ BRIEF IN OPPOSITION TO DEFENDANTS’

just as other employees had been allowed to do for non-political activities.

required her to work.

II. LISTING OF DISPUTED FACTS AND ARGUMENT REGARDING

B. Plaintiff’s Listing of Disputed Facts

Plaintiff’s Factual Recitation of General Disputed Facts1

1. It is undisputed that Plaintiff brought this suit under 42 U.S.C. § 1983

2. It is undisputed that Plaintiff is employed as a Technology Assistant

3. Plaintiff’s position as a TA at Gloucester High School has changed over

Depo. attached as exhibit 8 at pgs 59-67).

6. On November 16, 2005 Plaintiff requested that she be allowed to work a

7. On December 1, 2005, Superintendent Kiser sent Plaintiff a letter denying

Employee Participation in Political, Government, or Religious Activities. This policy states

An employee serving on government bodies requiring leave from

(Policy GBG, attached as Exhibit 10).

9. On December 12, 2005, the Defendants discussed Plaintiff’s request

pgs 12-17, Exhibit 6 at 35-40).

denial of her request. (Exhibit 1 at ¶¶17-19).

12. Beginning in February 2006, Plaintiff’s counsel wrote a number of letters

Board. (Id., Exhibit 11).

17, Exhibit 6 at 35-40).

battle of political wills.

these requests. (Exhibit 1 at ¶¶ 19-21).

Facts Relating to Personal Political Animus towards Plaintiff

interest. (See Ressler memo and deposition attached as Exhibit 12).

Plaintiff’s request was politically motivated. (Exhibit 1 at ¶ 18).

such refusal to meet would lead to a lawsuit.

19. In the Defendants’ Answer to Plaintiff’s Complaint and in their Motion to

pg. 2, Memo in Support of Motion to Dismiss at pgs. 14-15).

Facts Related to Plaintiff’s Breach of Contract Claim

paid 32.5 hours per week. (Exhibit 8 at pgs 27-37).

Plaintiff’s Listing of Disputed Facts from Defendants’ Brief2

violated Plaintiff’s Constitutional Rights. (Exhibit 11). In addition, Defendants Smith,

independently subject them to liability individually. (See ¶¶ 16-19 above).

29; Exhibit 17).

motivated and or based on personal political animus. (See ¶¶ 16-19 above).

27. Defendants claim that it would be disruptive or otherwise not feasible to

III. LEGAL ANALYSIS

A. Standard for Summary Judgment

all favorable legal theories invoked by the evidence so considered.” Id.

B. Defendants Violated Plaintiff’s First Amendment Rights by Denying Her

political animus towards Plaintiff.

1. Defendants Have Essentially Conceded that They Denied

political participation. As the Fourth Circuit has long recognized:

should be operated, and all such matters relating to political processes.")

Notwithstanding Plaintiff’s clear protected activity, Defendants have disingenuously

job. What is constitutionally protected, however, is Plaintiff’s right to not be subjected to an

adverse employment action, because of her First Amendment speech, affiliations, or

Defendants’ Denial of Plaintiff’s Request Constitutes an Adverse Employment Action

The Defendants’ denial of Plaintiff’s request constituted a sufficiently severe adverse

employment action so as to constitute a Constitutional violation. It noteworthy that the standard

429 F.3d 48, 50-52 (2d. Cir. 2005).

employees has cost Plaintiff thousands of dollars a year. (Exhibit 1 at ¶ 11).

component of an adverse employment action).

(See Exhibit 1 at ¶ 24).

Politics Was a Substantial Factor in Defendants’ Denial of Plaintiff’s Request

such a schedule was possible.

Defendants’ Denial was Based on Personal Political Animus towards Plaintiff

Ressler: Well maybe I should not be hearing this.