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Cooper v. Walker County E-911

United States District Court, N.D. Alabama, Jasper Division

July 26, 2018

DANA COOPER, Plaintiff,
WALKER COUNTY E-911, Defendant.



         This 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).


         Under 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.

         Once 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.

         After 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 Cir. 1988).

         II. FACTS

         Viewing 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.[1]

         Walker 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.

         Dana 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 the foregoing.

(Doc. 30-2, p. 2).[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).

         Terms 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:

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 restraints.[3]
* * *
* * *
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 County 9-1-1.
* * *
26. Insubordination
* * *
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 County E9-1-1.
* * *
* * *
* * *
* * *
* * *
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.
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).

         The 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[4] for failure to handle a call correctly.

         On 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, 2014.

         On September 22, 2014, Cooper received a verbal warning from Roger Wilson, the E-911 director, [5] 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).

         The 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.[6] 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.[7]

         After 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, [8] 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.

         Walker 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.[9] The policy does not apply to an employee who is off because of leave provided under the FMLA.

         On 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.[10]

         Walden 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.

         Wilson 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.[11] 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.[12] 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.

         After 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).

         Cooper 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.

         Cooper 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 time.

         Cooper 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.

         On 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 stress.[13]

         Dr. 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. ...

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