UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CAROL H. BAGWELL,

Plaintiff-Appellant,

v.

No. 98-1747

WAKE COUNTY PUBLIC SCHOOL

SYSTEM; WAKE COUNTY BOARD OF

EDUCATION,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

W. Earl Britt, Senior District Judge.

(CA-97-1017-5-BR)

Submitted: November 30, 1998

Decided: March 22, 1999

Before WILKINS, NIEMEYER, and WILLIAMS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Janet I. Pueschel, PUESCHEL LAW FIRM, Raleigh, North Carolina,

for Appellant. Michael Crowell, THARRINGTON SMITH, L.L.P.,

Raleigh, North Carolina, for Appellees.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Carol H. Bagwell appeals from the district court's order dismissing

Bagwell's action filed under the Americans with Disabilities Act

(ADA), 42 U.S.C.A. §§ 12101-12213 (West 1995 & Supp. 1998), for

failure to state a claim. We affirm.

Bagwell is a former teacher's aide with Defendant Wake County

Public School System ("System"). Bagwell suffers from bipolar disorder with manic depressed presentation. From February to April 1996,

Bagwell made harassing phone calls to various personnel at the elementary school where she worked and exhibited irrational and threatening behavior at the school. Bagwell's behavior persisted despite

warnings from the principal. The school ordered Bagwell to stay

away from the grounds; however, Bagwell failed to obey the order

and was arrested twice for trespassing on school grounds. After having granted Bagwell extended paid leave several times over the summer of 1996 in an attempt to accommodate Bagwell's disorder, the

System discharged Bagwell in August 1996.

Bagwell filed a grievance with the System, contending that she had

been terminated because of her mental disability in violation of the

ADA. After a hearing, the System denied the grievance and informed

Bagwell that she had been discharged for inappropriate behavior arising out of her threatening and harassing behavior at the school, not

because of a disability. Defendant Wake County Board of Education

("Board") denied Bagwell's appeal of the System's grievance decision, likewise informing her that she had been discharged for misconduct and not due to a disability.

In December 1997, Bagwell filed the instant action contending that

Defendants discriminated against her and terminated her due to her

mental disability. On February 17, 1998, Defendants moved to dis-

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miss under Fed. R. Civ. P. 12(b)(6), for failure to state a claim, in part

on the assertion that Bagwell failed to specifically allege that she was

dismissed because of her disability. Pursuant to local rule, Bagwell's

response to the motion to dismiss was due by March 12, 1998. On

March 23, Bagwell moved to amend the complaint in order to add a

sentence stating that she was discharged due to her disability, and at

the same time moved for an extension of time in which to respond to

the motion to dismiss. Bagwell's counsel admitted that her request for

an extension of time was untimely, but stated that she is a solo practitioner and was in trial the week of March 9-13, and thus could not

give her full attention to the motion to dismiss in order to respond

appropriately or to request an extension of time in which to respond.

Bagwell failed to confer with opposing counsel regarding the motion

to extend time.

On March 30, the district court summarily denied Bagwell's

motion to amend and for an extension of time. The district court

granted Defendants' motion to dismiss, holding that even if the complaint were read to specifically allege Bagwell was terminated due to

a disability, the complaint failed to state a claim. Bagwell timely

appealed, contending that the district court erred in denying her

motion to amend and for an extension of time, and that it erred in

granting the motion to dismiss.

The district court did not abuse its discretion in denying Bagwell's

motion for an extension of time. See Fed. R. Civ. P. 6(b)(2). Bagwell

does not dispute that her response to the motion was due on March

12. However, she failed to file her motion for an extension until

March 23, without consulting with opposing counsel as required by

local rule, and giving as her only justification that she was a solo

practitioner in trial the week the response was due. This does not constitute excusable neglect. See id.; McLaughlin v. City of LaGrange,

662 F.2d 1385, 1387 (11th Cir. 1981); see also Lujan v. National

Wildlife Fed'n, 497 U.S. 871, 895-97 (1990).

Although the district court may have abused its discretion by denying Bagwell's motion to amend her complaint before a responsive

pleading had been served,* see Fed. R. Civ. P. 15(a); see also

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*The motion to dismiss is not considered a responsive pleading. See

Smith v. Blackledge, 451 F.2d 1201, 1203 n.2 (4th Cir. 1971).

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Chisolm v. TranSouth Fin. Corp., 95 F.3d 331, 338 (4th Cir. 1996),

Bagwell's proposed amendment would not have altered the outcome.

Our review of the district court's dismissal order is de novo. See

Chisolm, 95 F.3d at 334; Little v. Federal Bureau of Investigation, 1

F.3d 255, 257 (4th Cir. 1993). Bagwell's complaint admits numerous

instances of actionable misconduct extending over a period of several

months and which were inappropriate for a public elementary school

employee. At each stage of the grievance process she was informed

that she was discharged due to her misconduct. Bagwell alleges no

facts which show she was terminated due to her disability, nor is her

allegation that Defendants fired her because of her disability supported by anything else in the record. It is clear from the pleadings

that Bagwell was terminated due to her misconduct, not due to her

disability. See Palmer v. Circuit Court of Cook County, 117 F.3d 351,

352-53 (7th Cir. 1997), cert. denied, 118 S. Ct. 893 (1998); Martinson

v. Kinney Shoe Corp., 104 F.3d 683, 686 n.3 (4th Cir. 1997); Little,

1 F.3d at 259.

For these reasons, we affirm the district court's order granting

Defendants' motion to dismiss in Bagwell's action.

AFFIRMED

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