IN THE UNITED STATES DISTRICT COURT
 

NORTHERN DISTRICT OF TEXAS
 

DALLAS DIVISION
 

TERESA WARD COOPER §
 

§ 

Plaintiff, § 

§ NO.3-04-CV-2407-N 

VS. § 

§ (Consolidated With: 

CITY OF DALLAS, TEXAS, § No.3-06-CV-1794-N) 

ET AL. § 

§ 

Defendants. § 

FINDINGS AND RECOMMENDATION OF THE 

UNITED STATES MAGISTRATE JUDGE 

Defendants the City of Dallas, Texas ("the City"), and its police chief, David Kunkle, have 

filed a motion for summary judgment in this discrimination, retaliation, and civil rights action 

brought under federal and Texas law. For the reasons stated herein, the motion should be granted 

on the affirmative defense of res judicata. 

I. 

PlaintiffTeresa Ward Cooper, a white female who professes Christian and Wiccan beliefs, 

was employed as a Dallas police officer from April 1988 to August 30, 2005. (Def. MSJ App. at 44, 

454; see also Plf. MSJ Resp. App. at 180-81). In May 2000, plaintiffwas promoted to the rank of 

sergeant and assigned to the Southeast Patrol Division. (Def. MSJ App. at 192, 196). Within a few 

months of her promotion, plaintiff alleges that her male supervisors and co-workers subjected her 

to sexual harassment and gender discrimination, which included making lewd and derogatory 

comments and giving her negative performance evaluations. (See Def. MSJ App. at 278-80; Plf. Sec. 

Am. Compi. at 4, ~~ 10-11). Plaintiff reported these acts to then-police chief Terrell Bolton in 

March 2001. (See Def. MSJ App. at 196-203). That same month, plaintiff was transferred to the 
North Central Patrol Division, where she alleges that this pattern of harassment and discrimination 

continued. (Id. at 216, 280-92). In addition, plaintiff contends that she was subjected to 

discrimination on the basis of her religious beliefs and retaliated against for filing internal 

grievances. (ld. at 225; see also Plf. Sec. Am. CompI. at 4-5, ~~ 12-14). During her II-month stint 

at the North Central Patrol Division, plaintiff filed more than 20 grievances complaining of 

discrimination and retaliation. (Def. MSJ App. at 217). 

In January 2002, plaintiffsought promotion to the rank oflieutenant. Upon learning that she 

was passed-overfor promotion, plaintiffcomplained that the selection process discriminated against 

white female candidates, that the written assessment was flawed, and that no allowance was made 

for "the extreme stress she was under due to the investigations and pact against her at the time ofthe 

examination[.]" (ld. at 290). In April 2002, plaintiffwas transferred to the Central Patrol Division, 

where she worked as a station sergeant and a field sergeant. (ld. at 272). Six months later, in 

October 2002, plaintiffwas diagnosed with a generalized anxiety disorder and placed on approved 

leave without pay until April 6, 2003. (ld. at 150,205,241). Plaintiff never returned to work. 

On May 16, 2003, plaintiffwas terminated by the City. In a letter to plaintiff, the police chief 

explained: 

Your last full day at work was October 6,2002. On April 7, 2003, 

you faxed a letter stating your physician had not yet released you to 

return to work. The letter stated the decision was reached when you 

last saw your physician on April 2, 2003, and you were next 

scheduled to see your physician on April 9, 2003. The letter was sent 

without any corroborating medical documentation. The "physician" 

to whom you refer is actually not a medical doctor, but your 

psychologist, Dr. Al Somodevilla. 

According to prior documentation from your psychologist, you were 

to return to work on April 2, 2003. On April 10, 2003, you faxed a 

statement from your psychologist with a new return date of "at least 

30 days." On May 11,2003, you did not report for duty, and you did 
not call in regarding your continued absence. When officers were 

sent to your home to check on your status, you refused to answer the 

door or speak with them when they attempted to contact you by 

telephone. 

Family Medical Leave for 2003 has been exhausted and Short Term 

Disability Expired on April 6, 2003. 

(Id. at 213). Plaintiff appealed her termination to the Civil Service Commission. Following a twoday hearing in February 2004, an administrative law judge found that plaintiffs termination was 

procedurally defective under police department regulations and ordered her reinstated, but without 

back payor benefits. (Id. at 130). 

Plaintiffremained absent from work under the care ofher psychologist, Dr. Somodevilla, for 

another seven months. On October 5, 2004, Dr. Somodevilla reported that plaintiff had reached 

maximum improvement and released her to return to duty "contingent upon the results ofa Fitnessfor-Duty evaluation." (Id. at 373). Although the police department scheduled five evaluations with 

three different doctors between October 2004 and February 2005, plaintiffeither failed to appear for 

her appointments or refused to cooperate with the examiners. (See id. at 330-31,374-75,428). As 

a result, plaintiff was charged with insubordination and placed on unapproved leave without pay 

pending further investigation. (Id. at 428). On August 30, 2005, plaintiffwas terminated by the City 

for insubordination related to her failure to participate in a fitness-for-duty evaluation. (Id. at 442­

43). 

In November 2004, plaintiff filed the first of three lawsuits related to her employment with 

the Dallas police department.) The first case, which was filed in federal district court, involves 

allegations ofrace, gender, and religious discrimination, hostile work environment, and retaliation. 

I Plaintiff also filed a declaratory judgment action in state district court seeking to enforce subpoenas issued 

in connection with her administrative hearing before the Civil Service Commission. The resolution of that case has no 

bearing on the disposition ofthe pending summary judgment motion. 
See Cooper v. City ofDallas, No. 3-04-CV-2407-N (N.D. Tex.) ("Cooper f'). Among the adverse 

employment actions alleged by plaintiff in Cooper I are the failure to promote her to the rank of 

lieutenant in January 2002 and her termination in May 2003. Three months later, in February 2005, 

plaintiff sued the City in state district court seeking a review of the administrative decision 

reinstating her without back pay and benefits. Cooper v. City of Dallas, Texas, No. 05-01690-1 

(l62nd Dist. Ct., Dallas Co., Tex.) ("Cooper If'). Plaintifflater amended her pleadings in Cooper 

II to allege that she was denied a fitness-for-duty evaluation by a physician ofher own choice. (See 

Def. MSJ App. at 173). Following a bench trial, the state court upheld the administrative decision 

on a substantial evidence review, and denied all other reliefrequested by plaintiff. (Id. at 174). That 

decision was affirmed on direct appeal. Cooper v. City of Dallas, Texas, 229 S.W.3d 860 (Tex. 

App.--Dallas 2007, pet. denied). While the state appeal was pending, plaintiff filed another federal 

lawsuit challenging her termination on August 30,2005. Cooper v. City ofDallas, No. 3-06-CV1794-N (N.D. Tex.) ("Cooper IIf'). Plaintiff also appealed her termination to the Dallas City 

Manager. That administrative appeal has been abated pending the outcome ofthe federal litigation. 

Shortly after plaintiff filed Cooper III, the court consolidated the two federal actions and 

ordered plaintiff to file an amended complaint containing "all claims and causes of action [she] 

intends to assert against defendants." See Order, 12/1/06. In her amended complaint, plaintiff 

asserts a variety ofclaims against the City and its police chief, David Kunkle, dating back to October 

2000. As best the court can decipher, plaintiffaccuses defendants of: (1) race, gender, and religious 

discrimination, sexual harassment, and retaliation in violation of Title VII of the Civil Rights Act 

of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e, et seq.; (2) disability discrimination in 

violation ofthe Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101, et seq.; (3) 

terminating her employment in violation of the Family Medical Leave Act of 1993 ("FMLA"), 
29 U.S.C. § 2615, and the anti-retaliation provisions ofthe Texas Worker's Compensation Act, Tex. 

Lab. Code Ann. § 451.001, et seq.; and (4) violating certain rights guaranteed by the United States 

Constitution, the Texas Constitution, and the Dallas City Charter. The case is before the court on 

defendants' motion for summaryjudgment. One ofthe grounds urged by defendants is that all claims 

asserted by plaintiffin the consolidated federal action are barred by res judicata.2 The issues have 

been briefed by the parties and the motion is ripe for determination. 

II. 

Summary judgment is proper when there is no genuine issue as to any material fact and the 

movant is entitled to judgment as a matter oflaw. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 

477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The substantive law determines 

which facts are material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,247, 106 S.Ct. 2505, 

2509-10,91 L.Ed.2d 202 (1986). Where, as here, a party seeks summaryjudgment on an affirmative 

defense, the movant must establish "beyond peradventure all of the essential elements of the [ ] 

defense to warrant judgment in his favor." Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 

1986) (emphasis in original). The burden then shifts to the non-movant to show that summary 

judgment is not proper. Duckett v. City o/Cedar Park, 950 F.2d 272, 276 (5th Cir. 1992). The 

parties may satisfy their respective burdens by tendering depositions, affidavits, and other competent 

evidence. Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 113 S.Ct. 82 (1992). 

All evidence must be viewed in the light most favorable to the party opposing the motion. Rosado 

v. Deters, 5 F.3d 119, 122 (5th Cir. 1993). 

2 Defendants also move for summary judgment on the grounds that plaintiff cannot prove any of her federal 

or state claims. In view of the recommended disposition of this motion, the court need not consider these alternative 

grounds for summary judgment. 
A.
 

As a preliminary matter, plaintiffmoves to strike defendants' motion, brief, and appendix of 

evidence. According to plaintiff, the appendix is not properly indexed, contains duplicate or 

unnumbered pages, and otherwise is procedurally defective, (see Plf. Mot. to Str. at 1-2, ~~ 1-4), 

while the brief fails to "include citations to each page of the Appendix that support each assertion 

that the party makes concerning the summary judgment evidence," (id. at 3, 7, citing N.D.Tex. 

LCivR 56.3(a)(3)). Even if the appendix and brief do not strictly comply with the local rules 

governing summary judgment practice, the court declines to strike the materials on that basis. See 

FED. R. CIV. P. 83(a)(2) ("A local rule imposing a requirement ofform must not be enforced in a way 

that causes a party to lose any right because of a nonwillful failure to comply. PI). 

Plaintiffalso objects that the declarations ofChiefDavid Kunkle and Assistant City Manager 

Charles Daniels are "conclusory and self-serving." (ld. at 3, 6). The court has not considered 

either declaration in ruling on the motion for summary judgment, except as necessary to provide 

general background information. Consequently, plaintiffs objections are overruled as moot. See 

Continental Casualty Co. v. St. Paul Fire & Marine Ins. Co., No. 3-04-CV-1866-D, 2006 WL 

984690 at *1 n.6 (N.D. Tex. Apr. 14,2006) (overruling as moot objections to evidence that is not 

considered by the court in deciding motion for summary judgment). 

B. 

Defendants contend that the state court judgment in Cooper II is res judicata of all claims 

asserted by plaintiffin the consolidated federal action. The rule ofresjudicata, or claim preclusion, 

"bars the litigation of claims that either have been litigated or should have been raised in an earlier 

suit." Test Masters Educational Services, Inc. v. Singh, 428 F.3d 559, 571 (5th Cir. 2005), cert. 

denied, 126 S.Ct. 1662 (2006). The policy considerations underlying the doctrine are the "promotion 
of judicial economy, prevention of vexatious litigation, prevention of double recovery, and 

promotion ofthe stability ofdecisions." Hogue v. Royse City, 939 F.2d 1249, 1254 (5th Cir. 1991), 

quotingGilbertv. Fireside Enterprises, Inc., 611 S.W.2d 869, 876-77 (Tex. Civ. App.--Dallas 1980, 

no writ). When a federal court is asked to give preclusive effect to a state court judgment, the court 

applies state res judicata principles. See Ellis v. Amex Life Ins. Co., 211 F.3d 935, 937 (5th Cir. 

2000). Under Texas law, a judgment is entitled to preclusive effect where: 

(1) there is a prior final judgment on the merits by a court of 

competent jurisdiction; 

(2) the parties in the two actions are identical or in privity with 

each other; and 

(3) the second action is based on the same claims that were 

raised, or could have been raised, in the first action. 

Citizens Ins. Co. o/America v. Daccach, 217 S.W.3d430, 449 (Tex. 2007); see also Amstadt v. Us. 

Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996). 

Plaintifftacitly concedes that the parties in Cooper 11 and the consolidated federal action are 

identical or in privity with one another. In addition, the court has little difficulty concluding that 

there is a prior final judgment on the merits by a court of competent jurisdiction, regardless of any 

appeal taken by plaintiff. The state court entered its judgment in Cooper 11 on March 6, 2006. (See 

Def. MSJ App. at 174). Under Texas law, a judgment is final for res judicata purposes despite the 

taking of an appeal, unless the appeal actually consists of a trial de novo. See Scurlock Oil Co. v. 

Smithwick, 724 S.W.2d 1, 6 (Tex. 1986). In any event, the judgment in Cooper 11 now has been 

affirmed on direct appeal, and the Texas Supreme Court has denied a petition for review. Thus, the 

only question remaining is whether the consolidated federal action is based on the same claims that 

were raised, or could have been raised, in Cooper 11. 
C.
 

Texas has adopted a "transactional test" to determine whether two cases involve the same 

claims or causes of action. As the Texas Supreme Court explained: 

The scope of res judicata is not limited to matters actually litigated; 

the judgment in the first suit precludes a second action by the parties 

and their privies not only on matters actually litigated, but also on 

causes of action or defenses which arise out of the same subject 

matter and which might have been litigated in the first suit. 

* * * * 

A determination of what constitutes the subject matter of a suit 

necessarily requires an examination of the factual basis of the claim 

or claims in the prior litigation. It requires an analysis of the factual 

matters that make up the gist ofthe complaint, without regard to the 

form of action. Any cause of action which arises out of those same 

facts should, if practicable, be litigated in the same lawsuit. 

Barr v. Resolution Trust Corp., 837 S.W.2d 627, 631 (Tex. 1992) (citing cases) (emphasis in 

original); See also Restatement (Second) of Judgments § 24(1) (a final judgment on an action 

extinguishes the right to bring suit on the transaction, or series of connected transactions, out of 

which the action arose). Under this approach, "resjudicata precludesrelitigation ofclaims that have 

been finally adjudicated or that arise out of the same subject matter and that could have been 

litigated in the prior action between the parties." Heardv. Moore, 101 S.W.3d 726, 728 (Tex. App.-­

Texarkana 2003, pet. denied) (emphasis in original). 

In the consolidated federal action, plaintiff presents a litany of complaints dating back to 

October 2000 related to her employment with the Dallas police department. Plaintiff generally 

alleges that she was disparately disciplined, denied a promotion, denied back pay and benefits, and 

ultimately terminated on the basis of her race, gender, disability, and religious beliefs and in 

retaliation for engaging in protected activity. (See Plf. Sec. Am. CompI. at 4-5, ,-r,-r 10-16 & 11-14, 
~~ 38-55). More particularly, plaintiff challenges: (I) the City's failure to promote her to the rank 

of lieutenant in January 2002; (2) her placement on leave without pay on October 7, 2002; (3) her 

initial discharge on May 16,2003; (4) the City's refusal to allow a fitness-for-duty evaluation by a 

physician of her choice; (5) her ultimate termination on August 30, 2005; and (5) the decision to 

abate her administrative appeal pending the outcome of this litigation. (See id. at 6, 8; 11-13, 

~~39-44; 15,~62; 16,~64; 17,~68; 18,~76&20,~88). The claims raised by plaintiff in the state 

litigation were considerably narrower. In Cooper II, plaintiff challenged only the administrative 

decision denying her back pay and benefits following her reinstatement in February 2004, and the 

City's refusal to allow a fitness-for-duty evaluation by her own physician. (See Def. MSJ App. at 

166-67). 

At least one of plaintiffs claims in the consolidated federal action--that she was denied a 

fitness-for-duty evaluation by a physician of her choice--was actually litigated in Cooper II. 

Although plaintiff chose not to raise any ofher other federal claims in the state litigation, that is not 

the test for res judicata purposes. Rather, the relevant inquiry is whether the claims asserted by 

plaintiff in the state and federal actions arise out of the same subject matter and could have been 

litigated in the state lawsuit. See Heard, 101 S.W.3d at 728. Certainly, the facts made the basis of 

plaintiffs claims in both cases arise out ofthe same subject matter--the terms and conditions ofher 

employment with the City and ultimate separation therefrom. See Moreno v. Irons, No. 05-99­

01296-CV, 2000 WL 463728 at *3 (Tex. App.--Dallas Apr. 25,2000, no pet.) (liThe two lawsuits 

at issue involve the same causes of action because they both arise out of the termination of 

appellants' employment [ ] and the reasons behind their termination--the same nucleus ofoperative 

facts. "). With due diligence, all ofthe claims asserted by plaintiffin the consolidated federal action, 

including those claims involving violations offederal statutes, could have been litigated in Cooper 
II. See, e.g. Turner v. City ofCarrollton Civil Service Comm'n, 884 S.W.2d 889, 894 (Tex. App.-­

Amarillo 1994, no pet.) (fonner police officer could have brought wrongful discharge and civil rights 

claims as part of action seeking to set aside decision of Civil Service Commission); Paz v. City of 

Houston, 748 F.Supp. 480, 486 (S.D. Tex. 1990) (state court judgment affinning decision ofCivil 

Service Commission was resjudicata ofconstitutional claims raised by police officer in subsequent 

federal litigation). 3 

Nor is res judicata defeated because the federal lawsuit was filed before the state action. 

Although Cooper II was the second-filed case, it proceeded to judgment first. Plaintiff gambled by 

splitting her claims and filing separate lawsuits in different forums. The pleading deadline in the 

state action did not expire until January 27, 2006--more than five months after plaintiffs final 

tennination and three months after her administrative appeal was abated. (See Def. MSJ App. at 

485). Thus, plaintiffcould have timely amended herstate court pleadingsto include all ofthe claims 

raised in the federal litigation. Under these circumstances, the third element of res judicata is 

satisfied. Hogue, 939 F.2d at 1255-56 (citing Texas cases) (under Texas law, when two suits 

proceed simultaneously, res judicata effect is given to first judgment rendered); see also In re 

Hansler, 988 F.2d 35, 38 (5th Cir. 1993) (first judgment rendered is given preclusive effect 

regardless of when suits were filed).4 

J While plaintiff may have had a plausible argument that Cooper Il was limited to the appeal of an 

administrative decision under a substantial evidence standard of review, the fact that she subsequently amended her 

pleadings in that case to challenge the City's refusal to allow a fitness-for-duty evaluation by her own physician, which 

ultimately led to her termination, shows that all claims arising out ofplaintiffs employment with the City could have been 

litigated in the state action. 

4 Plaintiff also argues, without explanation or authority, that n[d]efendants only waived their governmental 

immunity in the State District Court, so that matter could not be joined in this case. n (Plf. Resp. Hr. at 22) (emphasis 

in original). Even if this statement is true, the court notes that plaintiffs federal claims are barred because she failed to 

raise them in her state lawsuit, not the other way around. 
RECOMMENDATION
 

Defendants' motion for summaryjudgment [Doc. # 142] should be granted on the affirmative 

defense of res judicata. This case should be dismissed with prejudice. 

A copy of this report and recommendation shall be served on all parties in the manner 

provided by law. Any party may file written objections to the recommendation within 10 days after 

being served with a copy. See 28 U.S.C. § 636(b)(l); FED. R. CIY. P. neb). The failure to file 

written objections will bar the aggrieved party from appealing the factual findings and legal 

conclusions of the magistrate judge that are accepted or adopted by the district court, except upon 

grounds ofplain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th 

Cir. 1996). 

DATED: May 20, 2008. 

A>LA1"J 

STATES MAGISTRATE JUDGE