Teacher assistant with cancer fired for missing work
Posted February 27, 2012
Updated February 28, 2012
Raleigh, N.C. — A teacher assistant at River Bend Elementary School in Raleigh says she was fired for missing too many days of work due to her cancer treatments.
Donna Sotomayor was diagnosed with Stage 3 breast cancer in January 2010 and says she took leave from the school so she could have several surgeries, six chemotherapy treatments and 33 radiation treatments.
She returned to the classroom in October 2010, but continued to struggle with infections and illnesses that cost her work time over the next year. She received another blow last November when a routine test showed new trouble – the cancer had spread to her spine. Doctors said she had a tumor on her third lumbar.
“I have a family. I have a lot to live for,” Sotomayor said. “And when my doctor tells me, ‘You have to go out and go through treatment immediately,’ then yeah, I'm going to do that.”
About a month later, Sotomayor got some more bad news. After years of solid work reviews, Principal Lois Hart recommended she be fired for excessive absences.
“She was always friendly and supportive, and I don't know what changed,” Sotomayor said. “They said they need someone there who was reliable. Apparently, I wasn't reliable. I was sick.”
Sotomayor lacked about 50 work hours to qualify for Family Medical Leave, so Human Resources gave her the option to resign or be fired.
“Talk about getting kicked when you're down, and it really shocked me because I did not see it coming at all,” said Sotomayor, who described the meeting as “business-like” and “very detached.”
When she refused to resign, the school system sent her a termination letter that said, "While sympathetic to the extenuating circumstances of your excessive absences, it is in the best interests of the school system to terminate your employment."
Wake County public schools Assistant Superintendent Stephen Gainey signed the termination letter and says the decision was “absolutely nothing personal.”
“It's just one of these situations I wish never came across my desk,” he said.
For personnel reasons, Gainey couldn't talk about Sotomayor’s case specifically but said he understands if her story upsets people. He said it’s tough to balance employment rights with providing continuous service for students.
“The problem becomes, if you start holding jobs indefinitely, you wind up with, you'd be amazed how long, how quickly you'd get holes all over your school system,” Gainey said. “It is a tough thing to manage.”
Sotomayor received another setback when the school system sent a letter saying she was overpaid by more than $1,400 and that the money would be pulled directly from her short-term disability account.
“It's hard enough, you're going through cancer treatment trying to fight for your life,” she said.
Sotomayor said she worries the school system will do the same thing to other employees. She filed complaints with the Equal Employment Opportunity Commission and Labor Department.
"Cancer is a disability under the Americans with Disabilities Act," she said. "I have rights."
Under the ADA, an employer must accommodate an employee with cancer but not if it "would result in undue hardship."
Sotomayor’s doctor, Dr. Alan Kritz, an oncologist at Cancer Centers of North Carolina, said cancer need not mark the end of a career. “A lot of cancer patients who are surviving right now may have a rough one or two years or six months, but they can bounce back and be very productive employees, so I think we have to be very careful and look at things differently going forward," he said.
"I think she's a huge value-added to the school system. So, I think it's a shame that she can't work.”
“I don't know how they came up with the idea that it's OK to fire someone who went out for cancer treatment,” Sotomayor said. “This is not a choice that I made. This is something I have to do.”
Despite her setbacks with cancer and her job, she says she has become a tougher person.
“When you fight cancer, you find this person inside you, this strength, because you have to get through. You just have to get through, and that just came out again,” she said.
As the family struggles with medical bills, they're looking for an attorney to take their case.