CLEVELAND COUNTY, N.C. (QUEEN CITY NEWS) — With two grown kids, an adopted 8-year-old and a grandson, Wendy and Dale McKinney never expected they’d get so lucky to have another addition to their family. That surprise is named Marshall, now three years old. 

When Wendy found out she was pregnant with Marshall, doctors tried talking her into termination because of her age, she was 47. For Dale, termination “was a resounding no,” saying they both would accept if the baby had a disability and “love him just the same.”

At the time Wendy had been working for Cleveland County Schools since 2003, first as a media manager, then a bus driver, then a data manager and by the 2017-2018 school year she had been promoted to bookkeeper and she sometimes even filled in for the data manager. But the pregnancy and her other medical issues were taking its toll.

McKinney had a ruptured disk, carpal tunnel, and sciatica but couldn’t take any medicine because it could affect her unborn baby. She says she only took days off when she simply couldn’t function. And sometimes ignored doctor’s orders and did go to work.

After Marshall was born on November 16, 2018, McKinney tended to her other medical issues. In fact, she was terminated while recovering from surgery. The reason? Excessive absences. 

Bill Moore represents the McKinneys in their lawsuit against the Cleveland County school board. He’s repeatedly told the judge and the school board how deeply Wendy has suffered, especially after giving birth.

“She did not deserve to be terminated while on short-term disability for a high-risk pregnancy at age 47 and a ruptured disk that couldn’t be treated until she delivered the baby,” said Moore.

Moore says Wendy only needed 4-6 weeks after giving birth even though her short-term disability would have allowed her to stay out until the fall of 2019. Wendy planned to go back by January 2019. 

The school says she used all her time under the Family Medical Leave Act (FMLA) while caring for her sick mother plus she took additional time off. Moore says all of Wendy’s leave was legally permissible and some of the FMLA time was improperly classified by the school.

The school also says some of her absences impacted the daily operation of the school. Moore disagrees.

“She was doing her job and another job, she had cover, the person filling in for her still has that job.” 

The central issue is Cleveland County’s Board of Education policy stating regular attendance is a duty and essential job function for all employees.

To qualify under the Americans with Disabilities Act, as Wendy tried to, one must be able to perform the essential functions of a job with reasonable accommodation and without undue burden to the employer.

So too many absences equal an inability to perform an essential job function, which means McKinney doesn’t qualify under the ADA. At least that’s according to Judge Max Cogburn who dismissed the case before it reached the trial stage.

Judge Cogburn ruled that the board didn’t fire McKinney because of her pregnancy, an ADA disability, or because she took FMLA leave. But rather, because of her excessive absences.

Moore says that is an issue of fact for a jury to decide. Judges decide the law, juries decide facts.

Still, Judge Cogburn did note a sad truth in his decision, “American workers have few options when they face a personal health crisis that forces them out of work for long periods.”

McKinney never intended for it to be forever. “I loved my job, I miss my job every day, I planned to retire from North Shelby schools, it was great.” She and Dale will continue to fight this case, now on appeal, with Moore by their side.

And Moore won’t stop fighting until this case goes where it rightfully belongs, in front of a jury.

“This was not the right decision and justice was not served,” said Moore.

Queen City News reached out to the lawyers for Cleveland County Schools and Judge Max Cogburn. Both declined to comment.