The opinion of the court was delivered by: Garnett Thomas Eisele United States District Judge
Presently before the Court is Defendants' Motion for Summary Judgment. On October 18, 2007, the Court directed Plaintiff to show cause by filing with the Court a statement setting forth any and all facts and circumstances which support her position that summary judgment should not be entered in Defendants' favor because Plaintiff had failed to file a response to Defendants' motion. On October 24, 2007, the deadline given by the Court, Plaintiff filed her response. However, Plaintiff failed to comply with the Court's instructions in its Scheduling Order regarding the format of summary judgment responses and Local Rule 56.1(b). Pursuant to Local Rule 56.1(c), "[a]ll material facts set forth in the statement filed by the moving party . . . shall be deemed admitted unless controverted by the statement filed by the non-moving party . . . ." Because Plaintiff failed to controvert the statements filed by Defendants, those facts are deemed admitted.
Defendants submit the following facts through the submitted affidavits and supporting documentation: On November 11, 1993, Plaintiff was hired by the City of Little Rock as an Alert Center Facilitator within the City's Housing and Neighborhood Programs Department. She held that position until February 28, 1997, when she resigned. Plaintiff was re-hired as an Alert Center Facilitator on June 15, 1998. In August 2004, Plaintiff was assigned to the Park Street Alert Center. At that time, Plaintiff's immediate supervisor was Willie Carpenter, Alert Center Operations Supervisor. Ms. Carpenter's immediate supervisor was Defendant Barbara Hyatt, Manager of the Neighborhood Programs Division, and Ms. Hyatt's immediate supervisor was Defendant André Bernard, who was the Director of the Housing and Neighborhood Programs Department. Defendant Don Flegal was the Director of the City's Human Resources Department.
On August 6, 2004, Ms. Hyatt went to the Park Street Alert Center with Tracy Roark, the Code Enforcement Supervisor, to pick up a CPU, which was assigned to Code Enforcement and was to be configured for a newly hired Code Enforcement Officer. On August 9, 2004, Marvin Benton, the Environmental Services Coordinator for the Housing and Neighborhood Programs Department, was supervising a crew of community service workers assigned to clean an alley in the area of the Park Street Alert Center. That day, Ms. Hyatt could not reach Plaintiff at the Alert Center, so she called Plaintiff's City issued cell phone. Plaintiff indicated she was standing in front of the Alert Center talking to a citizen and complained that she had never received an answer from City staff regarding the use of certain equipment to clean up the alley. Ms. Hyatt informed Plaintiff that she was assigning the City truck that was at the Alert Center to Mr. Benton for that day, and that she would need to return the truck. She also asked Plaintiff if her child was at the Alert Center, and Plaintiff indicated that she was.
Later in the morning on August 9, 2004, Plaintiff was at the Alert Center with a small child and a teenage summer worker when Mr. Benton arrived at the Alert Center. Plaintiff stated that she was angry and upset about the way things were being done. The child brought Plaintiff a cell phone, which Plaintiff threw in the trash can. Plaintiff indicated that she was upset that Ms. Hyatt instructed Plaintiff to give Mr. Benton the City truck, and Plaintiff asked Mr. Benton to sign a release for the truck. Mr. Benton refused to sign the release because he had already been instructed to take the vehicle and signing a release was not required by City or Department policy. Plaintiff was upset and angry that Mr. Benton refused to sign and made the statement that this was the worst department and the worst people to work for in the City. Plaintiff was angry and agitated and her tone of voice was rude, loud and unprofessional. The incident was in the presence of the teenager and the small child. Mr. Benton reported to Ms. Hyatt and Ms. Carpenter that there had been an incident at the Alert Center involving Plaintiff.
Ms. Hyatt instructed Ms. Carpenter to have Plaintiff come to Ms. Hyatt's office at City Hall to discuss the matter. While Ms. Hyatt was speaking with Ms. Carpenter, Plaintiff came into Ms. Carpenter's office and informed Ms. Hyatt that she was going home. Ms. Hyatt informed Plaintiff that she could not go home at that time, but that she needed to sit down and calm down and discuss what had occurred with Mr. Benton at the Alert Center. Plaintiff refused to sit down, was very angry, pointed her finger at Ms. Hyatt, was belligerent and out of control. Plaintiff accused Ms. Hyatt and Mr. Roark of taking her computer and stated that they should have signed a release for the computer because she was responsible for the Alert Center equipment. Ms. Hyatt informed Plaintiff that Mr. Roark and Ms. Carpenter were responsible for the Alert Center equipment, and it was not necessary to sign a release.
Plaintiff also made a statement that Ms. Hyatt had no right to call her child "your child", and that her child had a name. Plaintiff twice made the statement that she quit, and Ms. Hyatt told Plaintiff that she would need to put that in writing. Plaintiff began to walk off, and Ms. Hyatt told her that if she left it would be unauthorized leave without pay and that she was out of control and being insubordinate. Plaintiff indicated that she was going to speak with Mr. Bernard. Mr. Bernard met with Plaintiff, Ms. Hyatt, and Ms. Carpenter, and Plaintiff stated that she could not and would not continue to work for Ms. Hyatt. Plaintiff also stated that Ms. Hyatt talked to her like a dog and she would not put up with that. She continued to act belligerently and she was angry and out of control. After Plaintiff left, Mr. Bernard, Ms. Carpenter, and Ms. Hyatt decided to suspend Plaintiff for five days for insubordination and multi-verbal outburst and refer her to the Employee Assistance Program ("EAP").
On August 11, 2004, Plaintiff was directed to meet with Ms. Carpenter and Ms. Hyatt at City Hall on August 12, 2004 at 8:00 a.m. Plaintiff arrived at the meeting with Ms. Carpenter and Ms. Hyatt at 8:22 a.m. on August 12, 2004. Plaintiff was informed that the decision was made to suspend her for five days for insubordination and multi-verbal outburst and to make a mandatory referral to EAP. After reading the Disciplinary Action Form and Confidential Employee Assistance Program Mandated Referral to Plaintiff, Ms. Hyatt directed Plaintiff not to attend any of her scheduled meetings or enter the Alert Center during her suspension. Ms. Hyatt also directed Plaintiff to turn in her keys to the Alert Center and her City cell phone. Plaintiff got her cell phone out and began deleting numbers. Ms. Hyatt directed Plaintiff to turn in her City employee identification, as well as any City vehicle keys in her possession. Plaintiff turned her back to Ms. Hyatt and directed her comments to Ms. Carpenter.
Ms. Hyatt handed the forms to Plaintiff and told her she could sign or refuse. Plaintiff got up and walked toward the door. Ms. Hyatt informed Plaintiff that her actions at that moment were the exact reason they were there in the first place. Plaintiff stated to Ms. Hyatt, "I'm not the one who needs help, you're the one who needs help and you have needed it for a very long time." Plaintiff left the room and said she would be in front and would take her copy there. Plaintiff made a comment to Ms. Carpenter that Ms. Carpenter was a "kiss ass Uncle Tom."
That same day, Ms. Carpenter, Ms. Hyatt, and Mr. Bernard decided that Plaintiff's employment with the City should be terminated due to Plaintiff's insubordination. However, pursuant to the City's Policy and Procedures Manual, an employee must receive a pre-termination hearing prior to being terminated. On August 13, 2004, Plaintiff submitted an appeal request regarding her suspension. Mr. Bernard instructed Ms. Hyatt not to serve the Notice of Pre-Termination Hearing until Plaintiff's appeal of her suspension was resolved. Plaintiff was involved in a motor vehicle accident on September 20, 2004 during working hours, and because of this, Mr. Bernard instructed Ms. Hyatt to hold off on service the Notice of Pre-Termination Hearing. Plaintiff's suspension was upheld on September 23, 2004.
On October 13, 2004, Ms. Hyatt and Ms. Carpenter went to the Park Street Alert Center to serve Plaintiff with the Notice of Pre-Termination Hearing, which was based on Plaintiff's insubordination on August 12, 2004. Plaintiff and Little Rock Police Officer Michelle Hill were outside of the Alert Center. Plaintiff advised that she was going to seek medical treatment. Plaintiff never indicated that she was suffering from heart attack symptoms. Ms. Hyatt asked Plaintiff to come into the Alert Center for a moment and asked Officer Hill to wait outside in order to preserve Plaintiff's privacy. Ms. Hyatt began to read the Notice of Pre-Termination Hearing to Plaintiff. When Plaintiff asked why she was being considered for termination, Ms. Hyatt stated that her insubordination, actions and remarks on the day she was served with the suspension notice were the reason. Ms. Hyatt advised Plaintiff to remove any personal items, and while Plaintiff sat at her desk, she began singing that Satan was in the house and Jesus would protect her from this evil. Plaintiff came toward Ms. Hyatt with her hands in a fist and shook her fists at Ms. Hyatt and shoved Ms. Hyatt with her chest three times. Plaintiff told Ms. Hyatt that Jesus knew Ms. Hyatt was evil, that Ms. Hyatt needed help and had needed help for a long time.
After speaking with Mr. Bernard and based upon these actions, Ms. Hyatt amended the Notice of Pre-Termination Hearing to include the events of October 13, 2004. Mr. Bernard advised that Ms. Hyatt contact the Little Rock Police Department to give an oral statement, which she did. The second Pre-Termination Hearing Notice was prepared and mailed to Plaintiff on October 15, 2004. The pre-termination hearing was conducted on December 2, 2004, after Plaintiff was released to return to work by her physician. On December 2, 2004, Plaintiff was terminated. She appealed the termination. The appeal hearing was conducted on December 22, 2004, and Plaintiff's termination was upheld on December 29, 2004.
Plaintiff also filed a Charge of Discrimination with the EEOC on December 2, 2004, alleging that she was discriminated against on the basis of race, retaliation, age, sex and disability. The EEOC issued its notice of right to sue on July 29, 2005, and Plaintiff filed her Complaint in this action on October 25, 2005. In her Complaint, Plaintiff alleges five counts: (1) Assault; (2) Criminal Slander; (3) Harassment under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act ("ADA"); (4) Tort of Wrongful Discharge and Retaliated (sic); and (5) Theft by Deception. Plaintiff's Complaint also refers to discrimination, hostile work ...