United States District Court, N.D. Alabama, Jasper Division
MICHAEL PUTNAM UNITED STATES MAGISTRATE JUDGE
matter is before the court on cross motions for summary
judgment. Defendant Walker County E-911 filed a motion (doc.
23), supported by evidence (docs. 24, 30), seeking
adjudication of all of the plaintiffs claims. Plaintiff Dana
Cooper filed a response in opposition, supported by evidence.
(Doc. 35). Defendant filed a reply brief. (Doc. 41). Also at
issue is the plaintiffs motion to strike portions of Rhonda
Walden's declaration (doc. 32) and her motion to strike
the opinion testimony of Dr. Gilreath (doc. 33). The
defendant has responded to the motions to strike. (Docs. 39,
40). The plaintiff filed a motion for partial summary
judgment, seeking summary adjudication of her claims that she
was denied due process under both the Alabama and United
States Constitutions. (Doc. 31). The defendant filed a
response in opposition, supported by evidence. (Docs. 37,
38). In addition, the defendant has moved to strike portions
of the reply brief filed by plaintiff in support of her
motion for partial summary judgment. (Doc. 42). All matters
have been fully briefed. The parties have consented to the
exercise of jurisdiction by the undersigned magistrate judge
pursuant to 28 U.S.C. § 636(c).
SUMMARY JUDGMENT STANDARD
Federal Rule of Civil Procedure 56(c), summary judgment is
proper "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law." Fed.R.Civ.P. 56(c). The
party asking for summary judgment "always bears the
initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of
'the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if
any,' which it believes demonstrate the absence of a
genuine issue of material fact." Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P.
56(c)). The movant can meet this burden by presenting
evidence showing there is no dispute of material fact, or by
showing that the nonmoving party has failed to present
evidence in support of some element of its case on which it
bears the ultimate burden of proof. Celotex, 477
U.S. at 322-23. There is no requirement, however, "that
the moving party support its motion with affidavits or other
similar materials negating the opponent's
claim." Id. at 323.
the moving party has met his burden, Rule 56(e)
"requires the nonmoving party to go beyond the pleadings
and by her own affidavits, or by the 'depositions,
answers to interrogatories, and admissions of file,'
designate 'specific facts showing that there is a genuine
issue for trial.'" Id. at 324 (quoting
Fed.R.Civ.P. 56(e)). The nonmoving party need not present
evidence in a form necessary for admission at trial; however,
he may not merely rest on his pleadings. Celotex,
477 U.S. at 324. "[T]he plain language of Rule 56(c)
mandates the entry of summary judgment, after adequate time
for discovery and upon motion, against a party who fails to
make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that
party will bear the burden of proof at trial."
Id. at 322.
the plaintiff has properly responded to a proper motion for
summary judgment, the court must grant the motion if there is
no genuine issue of material fact, and the moving party is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).
The substantive law will identify which facts are material
and which are irrelevant. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute is genuine
"if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party." hi at 248.
"[T]he judge's function is not himself to weigh the
evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial."
Id. at 249. His guide is the same standard necessary
to direct a verdict: "whether the evidence presents a
sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a
matter of law." Id. at 251-52; see also
Bill Johnson's Restaurants, Inc. v. N.L.R.B., 461
U.S. 731, 745 n.l 1 (1983). However, the nonmoving party
"must do more than show that there is some metaphysical
doubt as to the material facts." Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986). If the evidence is merely colorable, or is not
significantly probative, summary judgment may be granted.
Anderson, 477 U.S. at 249 (citations omitted);
accord Spence v. Zimmerman, 873 F.2d 256 (11th Cir.
1989). Furthermore, the court must "view the evidence
presented through the prism of the substantive evidentiary
burden," so there must be sufficient evidence on which
the jury could reasonably find for the plaintiff.
Anderson, 477 U.S. at 254; Cottle v. Storer
Communication, Inc., 849 F.2d 570, 575 (11th Cir. 1988).
Nevertheless, credibility determinations, the weighing of
evidence, and the drawing of inferences from the facts are
the function of the jury, and therefore the evidence of the
non-movant is to be believed and all justifiable inferences
are to be drawn in his favor. Anderson, 477 U.S. at
255. The non-movant need not be given the benefit of every
inference but only of every reasonable inference. Brown
v. City of Clewiston, 848 F.2d 1534, 1540 n.12 (11th
the evidence provided by both parties in the light most
favorable to the nonmoving plaintiff, the following facts are
considered true for purposes of the defendant's motion
for summary judgment.
County E-911 is an emergency communications district formed
in accordance with the Emergency Telephone Service Act,
Alabama Code § 11-98-1, et seq. It is governed
by a seven-member board of directors. Walker County E-911
receives all of its funding from the Alabama 911 Board, which
is funded by a charge levied on telecommunications bills.
Cooper applied for a job as a 911 emergency dispatcher with
Walker County E-911 on August 17, 2009. She filled out an
application form in which she agreed to conform to Walker
County E-911's rules and regulations. Immediately above
her signature on the application appeared the following:
In consideration of my employment, I agree to conform to the
company's rules and regulations, and I agree that my
employment and compensation can be terminated, with or
without cause, and with or without notice, at any time, at
either my or the company's option. I also understand and
agree that the terms and conditions of my employment may be
changed, with or without cause, and with or without notice,
at any time by the company. I understand that no company
representative, other than it's [sic] president, and then
only when in writing and signed by the president, has the
authority to enter into any agreement for employment for any
specific period of time, or to make any agreement contrary to
(Doc. 30-2, p. 2). Cooper asserts that when she applied for
the job Wilson told her that, once she completed a 90-day
probationary period, she could be fired only for cause.
(Cooper affi., doc. 31-4, para. 6). Consistent with this
assertion, Tim Stockman, the chairman of the board of
directors of Walker County E-911, stated that it would
violate Walker County E-911's policy to fire an employee
without cause. (Stockman depo., doc. 31-8, p. 59).
of Cooper's employment also were defined by an employee
handbook. Walker County E-911 provided a copy that was signed
and dated by the plaintiff on August 8, 2014, and includes
the following provisions relevant to this action:
VI. EMPLOYMENT POLICIES
A. Full Time Employees
All employees hired as full-time will work under the
supervision of Rotation Supervisors. Full time employees do
not have a probationary period. Very simply, as long as the
employee performs up to their job classification, they have a
job. Exceptions would be for disciplinary reasons or budget
* * *
XII. GENERAL CONDUCT
* * *
B. CAUSES FOR DISCIPLINARY ACTION
The following activities are cause for disciplinary action
but this list is not all inclusive. Employees are expected to
use reasonable judgement in carrying out their duties and not
act in a manner contrary to the best interests of Walker
* * *
* * *
XIV. DISCIPLINARY PROCEDURES
Discipline is necessary to the efficient operation of any
organization. These procedures are used to correct behavior
and actions that are not productive to the goals of Walker
A. VERBAL REPRIMANDS
* * *
B. WRITTEN REPRIMANDS
* * *
C. SUSPENSION WITHOUT PAY
* * *
D. SUSPENSION WITH PAY
* * *
* * *
1. Dismissals are used for extreme neglect to duty, conduct
unbecoming an employee of Walker County E9-l-1, or extreme or
continued violation of rules.
XV. GRIEVANCE PROCEDURES
It is the policy of Walker County E9-l-1 to resolve
grievances in a fair and equitable manner. No employee will
be penalized or retaliated against for filing a grievance.
1. The grievance procedure is to permit eligible employees
equal access to those individuals who make decisions
concerning personnel matters, and to provide a standard
process for the prompt investigation and resolution of
employees [sic] complaints.
2. The grievance procedure will not be used to resolve
differences among employees of similar rank or grade.
1. A grievance is a statement of an employee that a
supervisor or E9-l-1 official has improperly or prejudicially
applied or failed to apply the personnel rules, regulations,
or procedures of Walker County E9-l-1.
* * *
(Exh. 8 to Cooper depo., doc. 30-33, pp. 11-20).
essential job duties of an emergency 911 dispatcher include
answering emergency 911 calls, contacting and dispatching
emergency first responders, and guiding those first
responders to medical and other emergencies. Dana Cooper was
employed as a full-time 911 dispatcher on the night shift
from 2009 until August 2014. On August 5, 2014, Cooper was
given a verbal warning for not listening to 911 callers and
for incorrectly logging 911 information. (Doc. 30-5). There
is no indication that she filed a grievance with respect to
this verbal warning. On August 12, 2014, Cooper was
transferred from night shift to day shift, along with other
night shift workers, in order to gain additional training in
taking 911 calls. The day shift has a much heavier call
volume than the night shift, offering greater opportunities
for training. On August 14, 2014, Cooper received a verbal
warning for failure to handle a call correctly.
August 26, 2014, Cooper requested leave pursuant to the
Family Medical Leave Act ("FMLA") because of an
upper gastrointestinal condition that caused severe
indigestion, belching, and vomiting. Cooper provided a report
from Dr. Anitra Batie indicating that Cooper would be unable
to perform her job functions from August 26, 2014, until
October 13, 2014. Cooper's FMLA leave request was granted
on September 3, 2014. She did not work any shifts between the
dates of August 26, 2014, and September 10, 2014. On
September 10, 2014, Cooper provided a note from her doctor
dated September 9, 2014, which stated;
Dana Cooper is currently under my medical care. I am
releasing her back to work full duty. She may return to work
on 09/11/2014. Activity is restricted as follows: none. If
you require additional information please contact our office.
(Doc. 31-5). Cooper returned to work on September 11, 2014,
and apparently worked without incident until September 22,
September 22, 2014, Cooper received a verbal warning from
Roger Wilson, the E-911 director,  and a "final written
warning" from her supervisor, Sherrea Chamness, for
excessive use of her personal telephone while on duty. (Doc.
30-4). Cooper admits that the warning given for telephone use
was a correct evaluation of her conduct. On September 29,
2014, Cooper received a "first written warning"
related to logging calls incorrectly and not listening to
callers. (Doc. 30-5). She "took it as a learning
tool" and did not think that she was being "picked
on." (Cooper depo., doc. 30-25, pp. 161-63).
next day, on September 30, 2014, Cooper became ill before the
end of her shift. She experienced the same nausea and
vomiting that had been the basis of her FMLA leave. She asked
her supervisor, Chamness, if she could leave early. Chamness
told her she could leave but a doctor's excuse would have
to be provided upon her return because she was not scheduled
to work for the following two days, October 1 and 2. Cooper
questioned whether that was what the policy required, and
Chamness called Wilson on the phone to confirm that a
doctor's excuse would be required. Chamness then
made a photocopy of the policy language and gave Cooper the
copy. For about 20 minutes, Cooper continued to make retching
or belching sounds, and to come in and out of the dispatch
room. After Chamness told her that she had to have a
doctor's excuse, Cooper said, "fine." Cooper
admits that she was "perturbed" when Chamness told
her she had to bring in a doctor's excuse for leaving
early on September 30, 2014. Cooper also said to Chamness
that the policy was "ridiculous," and told Chamness
that she was still on FMLA and so she should not be required
to turn in a doctor's excuse.
Cooper left the building that day, the dispatchers discussed
Cooper's illness and said that she should not have eaten
chicken wings for lunch. One dispatcher stated that he did
not want to work with her any longer. Chamness instructed the
employees to prepare written statements about the incident.
The statements (doc. 30-6) were reviewed by Wilson and Rhonda
Walden,  who was second-in-command as the
administrator assistant, as part of the process of making a
determination of what personnel action to take regarding
Cooper. Walden reviewed the surveillance recording of the
incident, but did not watch the portion of the recording that
occurred after Cooper left for the day.
County E-911 has applied the policy to require written
doctor's excuses from other 911 dispatchers and from
Walden when they have taken off for shifts prior to a
scheduled shift off, but there is no evidence that it had
been applied in the similar circumstance of an employee
leaving work early. The policy does not apply to an employee
who is off because of leave provided under the FMLA.
October 1, 2014, Wilson and Walden met to discuss possible
disciplinary action concerning Cooper's conduct on
September 30, 2014. They reviewed the statements written by
the other dispatchers working that evening, the statement of
Chamness, and the video taken in the dispatch room, along
with the Warning Notices dated September 22, 2014, and
September 29, 2014, and the Standard Operating Procedures for
Walker County E-911.
testified that Wilson made the decision to terminate Cooper,
and the plaintiff does not seem to dispute this. Walden said
that she agreed with Wilson's decision, in part because
of Cooper's warnings regarding failure to take calls
correctly and the use of her personal phone, but primarily
because of Cooper's behavior on September 30, which was
deemed to be insubordinate toward Chamness, her supervisor.
Walden agreed that she could "barely hear" the
discussions between Cooper and Chamness on the surveillance
video. Cooper was not told that she had been insubordinate by
Chamness by either Walden or Wilson, and Walker County E-911
did not state that insubordination was the reason for the
firing until a year later when its attorney responded to
Cooper's EEOC charge.
called Cooper on October 1, 2014, and asked her to come in to
meet with him at 10:00 a.m. on October 2, 2014. Cooper went
to see Dr. Batie at 8:30 on the morning of October 2, 2014,
to obtain a doctor's excuse for leaving early on
September 30, 2014. She met with Wilson and Walden in
Wilson's office as scheduled, and she attempted to give
Wilson her doctor's excuse, in which Dr. Batie indicated
that Cooper was unable to work until October 21,
2014. Cooper was informed that her employment
had been terminated. She told Wilson that she had qualified
for leave under the FMLA and was treated unfairly when
Chamness told her that she had to bring in a doctor's
excuse for leaving her shift early. Wilson told Cooper that
he did not need the doctor's excuse because she was
fired. He also told her that she was no longer on leave
pursuant to the FMLA because her doctor had written a letter
that stated she could return to work without restrictions on
September 11, even though the FMLA leave approved previously
by Walker County E-911 extended through October 13, 2014.
Cooper said Wilson told her that her doctor had "messed
up" the paperwork by returning her to work.
Cooper was terminated, she submitted a document that she
titled a "Grievance to Walker County E-911 and Roger
Wilson" in which she requested a hearing before the
board of directors. (Stockman depo., doc. 31 -8, p. 44).
Walker County E-911 determined that its policy for grievances
applied only to employees and was not applicable to anyone no
longer considered an employee. No hearing on the grievance
was held. The chairman of the board of directors, Tim
Stockman, testified that he did not remember any discussions
regarding Cooper and stated that the board "refer[s]
everything" regarding legal matters to the board's
attorney and follows the attorney's advice. (Stockman
depo., doc. 31-8, p. 62).
testified that, although it was her opinion that getting
leave from work became more difficult after she got FMLA
leave in August, it was always difficult for any employee of
Walker County E-911 to obtain leave from work. Cooper also
agreed that all dispatchers' calls are scrutinized
carefully, that they are written up for doing things that are
incorrect in taking a call, and that such scrutiny is part of
being a 911 dispatcher. Cooper testified that she was treated
differently than other employees after she returned to work
on September 11, 2014. For example, she states that no one
else had been written up for making personal phone calls
before she was written up in September of 2014. Chamness and
Wilson reprimanded Cooper on September 20, 2014, for taking a
personal phone call that lasted thirteen minutes. Policy
allows employees to engage in personal calls for only five
minutes. The disciplinary notice indicated that it was her
last written warning, although Cooper had never received
previous written warnings for the same conduct. Walker County
E-911 policy provides for a verbal warning and three written
warnings prior to termination. Cooper received more written
reprimands in the weeks after she turned in her paperwork to
request FMLA leave than she had received in the prior several
years of employment at Walker County E-911.
began having seizures in April of 2014, although she never
had a seizure while on the job at Walker County E-911. She
had experienced seizures in 2012, but those did not interfere
with her work at Walker County E-911 at all. She had a
seizure in 2005 or 2006, about six or seven years prior to
2014. She had her first seizure when she was seven years old,
in 1981. When Cooper is about to have a seizure, she usually
feels light-headed, smells strange odors, and feels a weird
aura. She feels a strange sensation and then lies on the
ground to avoid falling. She does not know if she is
conscious or unconscious after that because she does not have
any memory of the seizure. Her husband has said that
sometimes she bites her tongue or cheek during the seizure
and sometimes she shakes violently. Her husband also
describes her as having jerking movements in her limbs during
a seizure. Cooper describes the seizures that involve biting
and that last longer than 30 seconds as "grand mal"
seizures and says that it takes her hours to regain her
senses after a such a seizure. Her less serious episodes,
referred to as "pseudo seizures, last about 30 seconds
to a minute and require only 15 to 20 minutes of recovery
never had any type of seizure while at work at Walker County
E-911, but she did have a seizure later in the day, or the
next day, after her last day of work at Walker County E-911.
She also had two seizures on October 1, 2014. She does not
recall whether she told Wilson that she had experienced
seizures. She has had "multiple hundreds" of
seizures since her dispatch job was terminated. In 2014 or
2015, Cooper applied for Social Security disability benefits.
She stated in her application that she was physically unable
to work at all.
October 2, 2014, Dr. Batie referred Cooper to a neurologist,
Dr. Gilreath. Dr. Gilreath examined Cooper on October 28,
2014. Cooper told Dr. Gilreath that her seizures occurred
with an aura of feeling somewhat dazed, which lasted a few
seconds, followed by a loss of consciousness. Cooper
described falling to the ground, loss of consciousness,
closing her eyes, moaning, and jerking and stiffening of the
extremities, with some flailing of the head. She also
described rare urinary incontinence and tongue or cheek
biting. She said the seizures usually last about 60 seconds
and then resolve and that it takes about 30 minutes for her
to return to baseline. She states that she is confused and
lethargic during the 30-minute period. Cooper told Dr.
Gilreath that her seizures were aggravated by significant
Gilreath opined that Cooper's seizures were not true
epileptic seizures, based on the fact that Cooper said she
had a seizure during an encephalograph when the test results
did not show evidence of seizure activity. He also said that
her description of her seizures was not typical of epileptic
seizures and that the flailing she described often occurs
with psychosomatic events. The doctor further stated that
stress as an aggravating factor was not consistent with
epileptic seizures, but was consistent with pseudo seizures.
Dr. Gilreath testified that Cooper told him on October 28,
2014, that she had been experiencing a seizure every other
day for a couple of minutes at a time, and that her seizures
had been quite severe since her last visit on October 17,
2014. He noted that Cooper was not responding to
anti-epileptic seizure medicine, which he felt further
indicated that her seizures were not epileptic seizures but
were psychogenic non-epileptic pseudo seizures or spells. He
was 99% certain that the events she described were
psychogenic spells and not epileptic seizures. He treated
Cooper with an anti-depressant as a result of his findings.
Dr. Gilreath stated that the pseudo seizures in his opinion
were not real seizures, and that the pseudo seizures were
"very possible that it was an act of malingering"
or "it was a subconscious decision of the patient to
have these spells either out of stress or because it's
some kind of release for her, ok, much like -- well, let me
say this, it's either a malingering type thing or ... a
subconscious type thing. In that case we would call it a
conversion disorder." (Gilreath depo., doc. 31-25, pp.
77-78). Dr. Gilreath prescribed Zoloft to treat Cooper's
anxiety. He also noted that Cooper appeared to be on a number
of high-risk prescription medications and that he was
concerned about the amount of medication prescribed to Cooper
from 2010 to 2014. (Doc. 31-25, pp. 90-92). Dr. Gilreath
stated that he believed Cooper could perform her job if given
time off to receive treatment for any psychological issues.
(Doc. 31-25, pp. ...