Orr v. City of Rogers

• Decision Date: 03 February 2017
• Docket Number: CASE NO. 5:15–CV–05098
• Citation: 232 F.Supp.3d 1052
• Parties: Elizabeth M. ORR, Plaintiff v. CITY OF ROGERS, Defendant
• Court: U.S. District Court — Western District of Arkansas

232 F.Supp.3d 1052

Elizabeth M. ORR, Plaintiff

v.CITY OF ROGERS, Defendant

CASE NO. 5:15–CV–05098

United States District Court, W.D. Arkansas, Fayetteville Division.

Signed February 3, 2017

James Monroe Scurlock, Wallace, Martin, Duke & Russell, PLLC, Little Rock, AR, Matthew Reid Krell, The Law Office of Matthew Reid Krell, Tuscaloosa, AL, for Plaintiff.

Thomas N. Kieklak, Harrington, Miller & Kieklak, P.A., Robert Justin Eichmann, Springdale, AR, Sara L. Monaghan, North Little Rock, AR, for Defendant.

MEMORANDUM OPINION AND ORDER

TIMOTHY L. BROOKS, UNITED STATES DISTRICT JUDGE

Currently before the Court is a Motion for Summary Judgment (Doc. 21) filed by the Defendant, City of Rogers (the "City"), on September 12, 2016. Plaintiff Elizabeth Orr filed her Response (Doc. 36) on October 31, 2016, and the City filed a Reply (Doc. 38) a week later. On January 24, 2016, the Court held a hearing on the Motion, during which it took oral argument from both parties. The City's Motion is now ripe for adjudication. For the reasons discussed below, the Motion (Doc. 21) is GRANTED IN PART AND DENIED IN PART.

I. BACKGROUND

The facts of this case are recited herein in the light most favorable to Orr, the nonmoving party, and are limited only to what is necessary to provide context for the Court's decision. Elizabeth Orr is a 59–year-old female who was employed by the City from February of 2004 until her termination in May of 2014. Orr began her employment as a dispatcher for the City's emergency services, and was eventually promoted to the position of Telecommunicator Supervisor in December of 2009. This supervisory position required her to oversee several dispatchers, and also to continue operating as a dispatcher herself.

In February of 2013, Orr broke her dominant left arm. This injury kept her out of work from February 19, 2013 to April 2, 2013, when she returned and was placed on light duty. Her job responsibilities while on light duty consisted of administrative work, and did not involve working as a dispatcher. During this time, Orr's arm was in a sling and she was still undergoing physical rehabilitation. In September of 2013, Orr's doctor recommended that she have surgery on her arm because her injury was not healing properly. She underwent surgery on October 24, 2013, and remained out of work until November 11, 2013. Upon returning, her arm remained impaired and she was assigned to a light duty position until January or February of 2014. At that point, she was physically able to perform her regular duties, and returned to them accordingly. See Doc. 23–1, pp. 21–22.

On several occasions after Orr returned to her full job duties, she allegedly requested additional training to "get her up to speed." (Doc. 35–2, ¶ 6). More specifically, Orr requested training on certain software upgrades and unwritten protocol changes that occurred while she was out of work or on light duty. These requests, according to Orr, fell upon deaf ears, and the City did not provide her with the training she needed. Instead, it offered her only "generic trainings"—trainings on issues of basic dispatcher competency not specific to the City's software and protocols. Id. at ¶ 14.

From March 13, 2014 to May 9, 2014, Orr was involved in seven specific incidents that the City eventually cited in its May 19, 2014 termination letter to her. On March 13, 2014, Orr was the original call-taker on a 9–1–1 call from the address of 1112 South E Street. The termination letter states that she "failed to ask key questions about the nature of the call," and "failed to log key information" regarding the call. (Doc. 23–8, p. 3). On March 25, 2014, Orr took a call from 1761 S. 1st Street and "failed to accurately log information ... which resulted in the dispatcher not being able to provide responding officers[ ] details about the weapons involved." Id. On April 22, 2014, again per the termination letter, Orr failed to notify her shift personnel about a train derailment, even though she was aware of the derailment. Id. On April 23, 2014, Orr's supervisor, Vicki Atchley, discovered that Orr did not properly supervise a dispatcher who was having difficulty coding fire dispatches. The termination letter indicates that Orr did not follow-up with the dispatcher after she put him into remedial fire training. Orr also varied from the Police Department's quality assurance procedures by failing to review 58 calls with him. Id. at 3–4. On April 28, 2014, the termination letter indicates that Orr failed to "give all possible returns on a Legislative Tag run by an officer." Id. at 4. On May 1, 2014, Orr processed a call where the caller twice gave a location of the intersection of North 24th Street and Meadow Lane. Orr recorded the location as being the intersection of North 24th Street and Meadow Drive, which is an entirely different location. Id. Finally, on May 9, 2014, Orr was the call-taker on a house fire at 4113 Willowbend Drive. Orr entered the call as being from 404 E. Willow Street, causing fire department personnel to be dispatched to that address. Id.

On May 14, 2014, the City provided Orr with written notice that the Rogers Police Department was considering disciplinary action against her, and was placing her on paid administrative leave. (Doc. 44–1). She attended a pre-disciplinary hearing two days later. On May 19, 2014, Rogers Chief of Police James Allen sent the aforementioned termination letter to Orr. The letter indicates that Orr's actions violated the City's Code of Conduct provision related to maintaining sufficient competency to perform duties.

Orr does not present facts that undermine the occurrence of these incidents, but does dispute whether they were terminable offenses, and whether she was even at fault for them. For example, she contends that the calls where she entered the incorrect addresses were the result of a computer "bug" with the reporting software. Some of her supposed errors, she contends, derived from being overworked. And, as noted above, she asserts that she requested, but was denied, additional training on the software used to log emergency calls after she returned to work from her arm injury. Moreover, she argues that these infractions were similar in kind to infractions committed by several other employees whom the City did not terminate.

Accordingly, Orr initiated a lawsuit in this Court on April 28, 2015, and filed an Amended Complaint (Doc. 13) on November 20, 2015. The Amended Complaint alleges sex discrimination in violation of Title VII and the Arkansas Civil Rights Act ("ACRA"); disability discrimination in violation of the ADA, the ACRA, and the Rehabilitation Act; retaliation under the Family and Medical Leave Act ("FMLA"), the ACRA, and the Rehabilitation Act; and age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"). The City's Answer (Doc. 15) generally denies these claims. On September 12, 2016, the City filed the instant Motion for Summary Judgment (Doc. 21). The Motion first argues that all of Orr's claims are time-barred because her Amended Complaint cannot relate back to her Original Complaint (Doc. 1). Alternatively, the Motion asserts that no material facts are in dispute and Orr has failed to prove any of her claims. That Motion is now ripe, and for the reasons stated below, is GRANTED IN PART AND DENIED IN PART.

II. SUMMARY JUDGMENT LEGAL STANDARD

"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The Court must view the facts in the light most favorable to the non-moving party, and give the non-moving party the benefit of any logical inferences that can be drawn from the facts. Canada v. Union Elec. Co. , 135 F.3d 1211, 1212–13 (8th Cir. 1997). The moving party bears the burden of proving the absence of any material factual disputes. Fed. R. Civ. P. 56(c) ; Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586–87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ; Nat'l Bank of Commerce of El Dorado, Ark. v. Dow Chem. Co. , 165 F.3d 602 (8th Cir. 1999). If the moving party meets this burden, then the nonmoving party must "come forward with ‘specific facts showing that there is a genuine issue for trial.’ " Matsushita , 475 U.S. at 587, 106 S.Ct. 1348 (quoting Fed. R. Civ. P. 56(c) ). These facts must be "such that a reasonable jury could return a verdict for the nonmoving party." Allison v. Flexway Trucking, Inc. , 28 F.3d 64, 66 (8th Cir. 1994) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). "The nonmoving party must do more than rely on allegations or denials in the pleadings, and the court should grant summary judgment if any essential element of the prima facie case is not supported by specific facts sufficient to raise a genuine issue for trial." Register v. Honeywell Fed. Mfg. & Techs., LLC , 397 F.3d 1130, 1136 (8th Cir. 2005) (citing Celotex Corp v. Catrett , 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ).

III. DISCUSSION

The Court begins by addressing two preliminary matters raised by the City's Motion and Orr's Response. First, Orr concedes in her Response (Doc. 36) that the City is entitled to summary judgment on her ADEA and FMLA claims.

The Court therefore GRANTS the City's Motion for Summary Judgment (Doc. 21) as to those issues. Second, the Court disagrees with the City's assertion that Orr's claims are time barred. Orr filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on January 19, 2015, and received a Right to Sue Letter on January 30, 2015. See Docs. 1–1; 1–2; 1, ¶ 3. She filed her pro se Original Complaint on April 28, 2015, just within the 90–day time period allotted by Title VII, the ADA, the Rehabilitation Act, and the ACRA. See 42 U.S.C. § 2000e–5(f)(1) ; 42 U.S.C. § 12117 ; 29 U.S.C. § 794a(a)(1) ; Ark. Code Ann....