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Orr v. City of Rogers

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

February 2, 2017




         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 non-moving 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.


         “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 (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 non-moving party must “come forward with ‘specific facts showing that there is a genuine issue for trial.'” Matsushita, 475 U.S. at 587 (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 (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 (1986)).


         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. § 16-123-107(c)(3). After obtaining counsel, Orr filed an Amended Complaint on November 20, 2015. (Doc. 13). According to the City, the allegations in Orr's Amended Complaint “are too temporally, and substantively dissimilar, to those contained in [her] original Complaint, to allow them to be related back to the earlier pleading.” McKenzie v. Lunds, Inc., 63 F.Supp.2d 986, 999 (D. Minn. 1999). Because the Amended Complaint cannot relate back to the date of the Original Complaint, the argument continues, it falls outside of the 90-day statutory time limitation.

         Federal Rule of Civil Procedure 15(c) provides, in relevant part, that “[a]n amendment to a pleading relates back to the date of the original pleading when . . . the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out-or attempted to be set out-in the original pleading.” The face of Orr's Original Complaint provided the City with notice: (i) that she filed a charge with the EEOC based on “sex, age, and disability” discrimination; (ii) that the discrimination occurred “by disciplining her more harshly than male employees” and younger female employees, and “by failing to provide her with the same training” received by others; and (iii) that her termination was also discriminatory. See Doc. 1. In addition, the Complaint attaches her EEOC Charge, (Doc. 1-1), which discusses her denied request for remedial training, disciplinary history, and allegations of disability, age, and sex discrimination. Given that the scope of her Amended Complaint, after conceding the issues of age and FMLA discrimination, involves sex and disability discrimination based on her termination and training request, her Amended Complaint clearly arises “out of the conduct, transaction, or occurrence” set out in the original pleading. Fed.R.Civ.P. 15(c). Orr's Amended Complaint, therefore, relates back to the date of her Original Complaint, and is not time barred.

         The primary case relied on by the City, McKenzie, 63 F.Supp.2d at 986, is not to the contrary. There, the District of Minnesota court found that an amended complaint did not relate back to an original complaint after the original complaint simply alleged Title VII discrimination without specifying the basis of the discrimination, and the amended complaint asserted an ADEA claim. Id. at 998-1000. The amended complaint also asserted a series of discriminatory acts that were not mentioned in the original complaint. Id. at 998. This made the disparity between the original and amended complaints so significant that “the conduct alleged in the Plaintiff's initial Complaint cannot be said to have arisen out of the same set of facts as asserted in his amended claim, ” under Rule 15(c). Id. at 999. Unlike in McKenzie, Orr's Original Complaint and its attachments specifically identify the claims of age and disability discrimination that have persisted through her Amended Complaint, as well as the events from which those allegations of discrimination stem. By receiving the Original Complaint, then, the City should have “understood what the factual basis for those claims were originally purported to be.” Id. at 1000.

         These preliminary matters having been decided, the Court will proceed by setting forth the ADA and Title VII legal principles applicable to this case, and then discussing how these principles apply to Orr's claims.

         A. ADA and Title VII Principles of Law

         “The ADA makes it unlawful for a covered employer to discriminate against any ‘qualified individual on the basis of disability.'” Hill v. Walker, 737 F.3d 1209, 1216 (8th Cir. 2013) (quoting the ADA, 42 U.S.C. § 12112(a)).[1] Discrimination under the ADA includes, in relevant part, “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.” 42 U.S.C. § 12112(b)(5). And, the ADA prevents employers from retaliating against persons who invoke the Act's protections. 42 U.S.C. § 12203(a). A plaintiff thus can bring claims under the ADA for failure to accommodate, retaliation, and other forms of disparate treatment.

         Under the familiar framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), a plaintiff alleging disparate treatment or retaliation under the ADA must first establish a prima facie case of discrimination. See Olsen v. Capital Region Med. Ctr., 713 F.3d 1149, 1153 (8th Cir. 2013). To establish a prima facie case of disparate treatment, a plaintiff must show that she: “(1) is disabled within the meaning of the ADA, (2) is a qualified individual under the ADA, and (3) has suffered an adverse employment action because of [her] disability.” E.E.O.C. v. Prod. Fabricators, Inc., 763 F.3d 963, 969 (8th Cir. 2014) (quotation omitted). To establish a prima face case of retaliation, a plaintiff must show that “(1) she engaged in a statutorily protected activity, (2) the employer took an adverse action against her, and (3) there was a causal connection between the adverse action and the protected activity.” Hill, 737 F.3d at 1218. “Once the plaintiff establishes this prima facie case, then a rebuttable presumption of discrimination arises, and the burden shifts to the defendant to articulate a legitimate nondiscriminatory reason for the adverse employment action.” Prod. Fabricators, 763 F.3d at 969. “If such reason is provided, the burden shifts back to the plaintiff to show that the employer's proffered reason is merely a pretext for intentional discrimination.” Id.

         A plaintiff alleging a failure-to-accommodate violation of the ADA need not engage with the McDonnell Douglas framework. “This is so because a claim against an employer for failing to reasonably accommodate a disabled employee does not turn on the employer's intent or actual motive. The McDonnell Douglas line of cases, however, is aimed at fleshing out this elusive factual question of intentional discrimination.” Peebles v. Potter, 354 F.3d 761, 766 (8th Cir. 2004) (quotation omitted). Instead, the Eighth Circuit has prescribed “a modified burden-shifting analysis, ” Fenney v. Dakota, Minn. & Eastern R.R. Co., 327 F.3d 707, 712 (8th Cir. 2003), in which a plaintiff “must establish both a prima facie case of discrimination based on disability and a failure to accommodate it, ” Schaffhauser v. United Parcel Serv., Inc., 794 F.3d 899, 905 (8th Cir. 2015). The plaintiff then has the burden to show “that the requested accommodation is ‘reasonable on its face, i.e., ordinarily or in the run of cases.'” Peebles, 354 F.3d at 768 (quoting U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 401 (2002)). “Upon such a showing, the employer is left to ‘show special (typically case-specific) circumstances that demonstrate undue hardship in the particular circumstances.'” Id. (quoting Barnett, 535 U.S. at 402).

         The Eighth Circuit has also recognized that the ADA creates “a shared responsibility between employers and employees to resolve accommodation requests, ” E.E.O.C. v. Convergys Customer Mgmt. Grp., Inc., 491 F.3d 790, 795 (8th Cir. 2007), commonly referred to as the “interactive process, ” Peyton v. Fred's Stores of Ark., Inc., 561 F.3d 900, 902 (8th Cir. 2009). A plaintiff can demonstrate that her employer failed to engage in this interactive process by showing that:

1) the employer knew about the employee's disability; 2) the employee requested accommodations or assistance for his or her disability; 3) the employer did not make a good faith effort to assist the employee in seeking accommodations; and 4) the employee could have been reasonably accommodated but for the employer's lack of good faith.

Prod. Fabricators, 763 F.3d at 971. “Although there is no per se liability under the ADA if an employer fails to engage in an interactive process, ” Cravens v. Blue Cross & Blue Shield of Kansas City, 214 F.3d 1011, 1021 (8th Cir. 2000), for summary judgment purposes, “the failure of an employer to engage in an interactive process . . . is prima facie evidence that the employer may be acting in bad faith, ” Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 952 (8th Cir. 1999). “Under these circumstances . . . a factual question exists as to whether the employer has attempted to provide reasonable accommodation as required by the ADA.” Id.

         Finally, Title VII of the Civil Rights Act of 1964 makes it unlawful for employers to discriminate on the basis of race, sex, color, national origin, or religion. See 42 U.S.C. § 2000e-2(a).[2] A claim of discrimination survives summary judgment if the plaintiff produces direct evidence of discrimination, or creates an inference of discrimination under the McDonnell Douglas framework. See Griffith v. City of Des Moines, 387 F.3d 733, 736 (8th Cir. 2004). The term “direct evidence” “refers to the causal strength of the proof, not whether it is ‘circumstantial' evidence.” Id. If a plaintiff does not have “strong (direct) evidence that illegal discrimination motivated [an] employer's adverse action, ” then she must create “the requisite inference of unlawful discrimination through the McDonnell Douglas analysis, including sufficient evidence of pretext.” Id. (first parenthetical in original). In sex discrimination cases, a plaintiff satisfies the first, “prima facie, ” step of the McDonnell Douglas framework by showing that “(1) she was a member of a protected group; (2) she was qualified to perform her job; (3) she suffered an adverse employment action; and (4) she was treated differently from similarly situated males.” Tenge v. Phillips Modern Ag. Co., 446 F.3d 903, 910 (8th Cir. 2006). Once a plaintiff makes this prima facie case of discrimination, “the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions, and then shifts back to the employee to show that the employer's reason was pretextual.” Turner v. Gonzales, 421 F.3d 688, 694 (8th Cir. 2005).

         Given the analytical similarities between Orr's Title VII, ADA disparate treatment, and ADA retaliation claims, the Court will discuss them together, beginning with the question of whether she has made out a prima facie case of each, and proceeding through the McDonnell Douglas framework. Then, the Court will discuss Orr's analytically distinct failure to accommodate claim.

         B. Title VII: Orr Has Made a Prima Facie Case of Discrimination

         Beginning with Title VII, the Court first finds that Orr has not presented any direct evidence of sex discrimination. Direct evidence “is evidence that establishes a specific link between the alleged discriminatory animus and the challenged decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated the employment decision.” Shaffer v. Potter, 499 F.3d 900, 904 (8th Cir. 2007) (alteration and quotation omitted). This includes “evidence of conduct or statements by persons involved in the decisionmaking process that may be viewed as directly reflecting the alleged discriminatory attitude, where it is sufficient to support an inference that discriminatory attitude more likely than not was a motivating factor.” Id. (quotation omitted). In simpler terms, direct evidence “most often comprises remarks by decisionmakers that reflect, without inference, a discriminatory bias.” McCullough v. Univ. of Ark. for Med. Scis., 559 F.3d 855, 861 (8th Cir. 2009); see also Simmons v. New Pub. Sch. Dist. No. Eight, 251 F.3d 1210 (8th Cir. 2001) (school board president's statements that plaintiff was ”a woman in a man's job” and that a woman “can't handle” plaintiff's job were direct evidence of discrimination), a ...

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