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Milk shake-up 

Heather Burgbacher never suspected she'd be in the headlines.

A family-oriented, 36-year-old schoolteacher, Burgbacher prefers "the quiet life" that comes with living in Conifer, southwest of Denver.

And yet, she has found herself the center of a legal controversy that could set a precedent for how American women are treated when they perform a private chore at work. Namely, expressing breast milk.

Her story begins in 2006, when Burgbacher started work at Rocky Mountain Academy of Evergreen. Her job was teaching K-8 kids technology, and she brought previous teaching experience and a masters degree in K-12 instructional technology from Regis University in progress.

In 2008, Burgbacher gave birth to her first child, a daughter. Upon returning to work, she explained to her then-director that she would need to pump milk during the day, requiring an additional break. The director was agreeable, and even covered some of Burgbacher's breaks himself.

By the time Burgbacher's second daughter was born, in 2010, a different director was in place. And Burgbacher says Dan Cohen was not so accommodating. In fact, she says Cohen refused to renew her contract, saying her pumping schedule had caused "a conflict."

It's not clear whether breastfeeding is at the center of many controversies in Colorado. There was one recent instance at Grand Junction Parks and Recreation where a worker asked a breastfeeding mother to nurse in a bathroom. That department is changing its training in response. But conflicts, at least publicized ones, seem to be an exception.

In Colorado Springs School District 11, spokesperson Devra Ashby seemed shocked that breastfeeding would ever be an issue, noting that at D-11, they simply "follow the law" and allow mothers the time and space they need.

As for Burgbacher, she has a battle ahead. Reached by phone, Rocky Mountain Academy director Cohen says only, "We categorically deny the allegations and depictions in the media. But it is a personnel matter and we can't discuss it further than that."

Cohen soon may have to reveal more. Rebecca Wallace, staff attorney for the American Civil Liberties Union of Colorado, has taken on Burgbacher's case and plans a lawsuit. Wallace has filed a notice of claim, which after a 90-day waiting period, would give her the right to sue on Burgbacher's behalf under the 2008 Colorado Workplace Accommodations for Nursing Mothers Act. The law, meant to protect women who pump breast milk at work, has not been tested.

Wallace has also filed a complaint with the Equal Employment Opportunity Commission, whose blessing she needs to file a lawsuit under federal antidiscrimination laws.

Asked why the ACLU took Burgbacher's case, Wallace says, "[We] really want to work to change the paradigm of a model employee from one that doesn't get pregnant, doesn't give birth, doesn't breast feed, doesn't have child-care responsibilities."

We spoke with Burgbacher about the ordeal.

Indy: How did things go after the birth of your second child?

HB: I came back to school in August, and the first day when I was given my schedule, I approached my director ... and at the beginning he was very understanding of the situation, but asked me to take a look at my schedule and see what I could work out. ...

I offered the suggestion of taking maybe the last 10 minutes of one class and the first 10 minutes of the next class ... He asked me to task it to the middle-school coordinator, since they were middle-school classes ... and that worked.

Indy: And when did that change?

HB: Wednesday, November 17. I actually had stepped into the business manager's office. ... She stopped me, handed me the "Workplace Accommodations for Nursing Mothers," told me that I was causing an undue hardship for the school, that the person covering my classes no longer wanted to do it, and that I needed to use my Thanksgiving break — which was like, the following week — to rearrange my pumping schedule.

When I told her, it just doesn't work that way ... she suggested I started supplementing with formula, as I would have to drop that pumping session.

Indy: So what happened then?

HB: I spoke to a few of my co-workers. I had a few of them offer to cover my class. One was a special-ed teacher.

... I went back to [the business manager] and said, "Hey can we do this? This person is offering herself." And I was told "No," that I can't impose on anyone else, and that the director, business manager and front office ladies would take turns covering my class. ...

That only lasted the week after break, and then I was told by my business manager that I had to attend a mandatory mediation. ... The mediator looked at the law and explained the meaning of undue hardship. And the administration was therefore basically advised that I wasn't causing an undue hardship. And the recommendation was that ... the special-ed teacher would be the one to cover my classes.

Indy: So this arrangement is put in place, and then what?

HB: The person started coming in, and no problems were there.

Indy: They really had nothing to gripe about at this point, right?

HB: Correct. And then in February, I was pulled out of [class] and taken to my office and told by my director that they didn't plan on offering a contract for the 2011-12 school year. I was stunned and asked, "How could this be? I'm completely qualified; I hold a masters degree in my subject area; I have been at the school for five years." ... And he looked at me and said, "Heather, it has nothing to do with your performance or qualifications, it has to do with the conflict you caused earlier this year."

Indy: You were lucky that the ACLU selected your case.

HB: I know. ... I taught 34 classes a week, and I needed an hour a week to take care of my child's needs, and they attempted to deny that. I just know that if this had happened with my first daughter, I don't know if I would have had the strength or courage to follow through on this.

Indy: How will you prove this case?

HB: The excuse that they've put out just recently ... was that it was a dramatic change in the job. However, the way the job changed — it's put out there that it's teaching adults technology. It's not. It's teaching kindergarten through fifth grade, and helping the middle school teachers incorporate technology into their curriculum.

How do I know this? I helped write the job description. ...

They [now] say I'm not a fit because of my qualifications. But ... the position has been filled by someone with less experience that doesn't hold the same degrees I have.

Indy: Do you want to see this tried, or would you be up for settling?

HB: It depends on what they would want to offer in the settlement. I want to make sure that the people involved are held accountable for their discriminatory actions, and I want to make sure that nobody else has to go through this.

stanley@csindy.com

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