Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:01-cv-02199-MSK-MEH

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 01-cv-02199-MKS-OES MICHAEL E. CLAWSON and JARED L. DILLON, Plaintiffs, v. MOUNTAIN COAL COMPANY, L.L.C., ARCH WESTERN RESOURCES, L.L.C., and ARCH COAL, INC., Defendants.

PLAINTIFFS' REPLY RE: MOTION FOR PARTIAL RECONSIDERATION OF THE SUMMARY JUDGMENT ORDER OF MARCH 15, 2005

The plaintiffs, John R. Bartlett, Michael E. Clawson, Jared L. Dillon, and Thomas E. Richards, through their undersigned counsel, Killian, Guthro & Jensen, P.C., hereby submit their Reply Re: Motion For Partial Reconsideration Of The Summary Judgment Order Of March 15, 2005, and in support thereof, state as follows: I. DEFENDANTS CITE TO THE WRONG TEST FOR DECIDING A MOTION FOR RECONSIDERATION OF AN INTERLOCUTORY ORDER Defendants, in section one of their response, beginning on page two, articulate the wrong standard for deciding motions to reconsider interlocutory orders, and then expound on why plaintiffs did not meet this standard. Defendants cite to a standard articulated in Servants of the Paraclete with three bases for reconsideration. Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). However, this case, as well as all of the others cited by defendants'

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response, articulates the standard for reconsidering a final judgment. A motion to reconsider a final judgment is coextensive with a motion filed pursuant to Fed. R. Civ. P. 59 or 60. Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991). It is the rule 59(e) test that defendants are attempting to force upon plaintiffs and the court in their response. Servants, 204 F.3d at 1012; Jennings v. Rivers, 394 F.3d 850, 854-855 (10th Cir. 2005). The court's summary judgment order was an interlocutory order because it was not a final judgment in that it "ajudicat[ed] fewer that all the claims or the rights and liabilities of fewer than all the parties." Fed. R. Civ. P. 54(b). Such an order "is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties." Fed. R. Civ. P. 54(b). The rule 59(e) test does not apply to interlocutory orders, such as orders of partial summary judgment; it only applies to final judgments. Anderson v. Deere & Co., 852 F.2d 1244, 1246 (10th Cir. 1988); Wagoner v. Wagoner, 938 F.2d 1120, 1122 FN 1 (10th Cir. 1991). A motion for reconsideration of an interlocutory order invokes "the court's general discretionary authority to review and revise interlocutory rulings . . . ." Wagoner, 938 F.2d at 1122 FN 1. The court may reconsider an interlocutory order based on non-binding authorities, such as appellate decisions from other circuits. See Wilson v. Merrell Dow Phams., 160 F.3d 625, 628 (10th Cir. 1998). "[W]hen a lower court is convinced that an interlocutory ruling it has made is substantially erroneous, the only sensible thing to do is to set itself right to avoid subsequent reversal." In re Unioil, 962 F.2d 988, 993 (10th Cir. 1992). "This inherent power [to reconsider interlocutory orders] is not governed by rule or statute and is rooted in the court's equitable power `to process litigation to a just and equitable conclusion.'" National Business

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Brokers, Ltd. v. Jim Williamson Prods., Inc., 115 F.Supp. 2d 1250, 1256 (D. Colo. 2000). Under the correct standard for reconsideration of interlocutory orders, it is appropriate for plaintiffs to request partial reconsideration of the summary judgment order in the interest of justice and uniform enforcement of the laws in accordance with the policies underlying the rule of stare decisis. II. HINES CLEARLY SUPPORTS PLAINTIFFS' POSITION, AND FRAZIER IS DISTINGUISHABLE ON ITS FACTS The Hines case clearly interprets Smith v. Midland Brake to stand for the proposition that failure to engage in the interactive process deprives an employer of the possibility of obtaining summary judgment on the grounds that the plaintiff is not qualified. Plaintiffs quoted extensively from Hines so that the court would be able to see clearly the holding of the case and its reasoning. There can be no other reasonable interpretation of the Hines case. Defendants' choice of words, such as "according to plaintiffs" and "plaintiffs' . . . interpretation of Hines," hint at another interpretation, but no such interpretation is offered by defendants. In reality there is only one interpretation of Hines. Defendants' footnote one is misleading. Hines clearly holds that if there is a question of fact as to whether defendants engaged in the interactive process, summary judgment for defendants is inappropriate even if the plaintiff cannot show she was qualified, unless the accommodation was unreasonable as a matter of law, obvious, or impossible. Defendants attempt to argue that a plaintiff must show she was qualified in order to show that any accommodation was not unreasonable or impossible. This is clearly wrong and defeats the purpose of the whole interactive process requirement and attempts to weld the qualified requirement onto it. Contrary to defendants' assertion, the Hines court found that summary

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judgment was inappropriate because the defendant, Chrysler, did not argue accommodation was unreasonable as a matter of law, obvious, or impossible. Hines, 231 F.Supp 2d at 1048. Thus, the burden is on defendant to show that accommodation was unreasonable as a matter of law, obvious, or impossible. Plaintiffs' correctly explained Hines in their motion for reconsideration. Under the Hines case, summary judgment was inappropriate on Bartlett's and Richards's claims for failure to accommodate and wrongful termination under the ADA. The court in Hines carefully analyzed the Tenth Circuit's decision in Midland Brake, and presented a well reasoned persuasive interpretation of the case. Defendants present a contrary interpretation to that of the Hines court. However, the point of plaintiffs' motion to reconsider is that this court should avoid an inconsistent decision with an already published decision from this district, unless there is an especially strong reason not to follow the decision. United States v. United States Vanadium Corp., 230 F.2d 646, 649 (10th Cir. 1956); Eaton Land and Cattle Co. II v. Rocky Mnt. Investments, 28 B.R. 890, 892 (Bnkr Colo. 1983). Despite defendants' disagreement with the decision, Hines is well reasoned both in terms of interpreting Midland Brake and in terms of ADA policy. Take the following passage from Midland Brake: Without deciding this record-intensive inquiry today, we note only that summary judgment would be premature if there is a genuine dispute regarding whether Midland Brake participated in good faith in attempting to secure a reassignment position for Smith as part of its duty to offer a reasonable accommodation to Smith. On remand, the district court should consider, among other things, whether Smith's failure to obtain a medical release was the result of any failure by Midland Brake to inform him of any vacancies; or the result of any undisclosed reliance by Midland Brake on the absence of a medical release; or perhaps whether Smith, in reliance on his near data entry reassignment, may reasonably have believed no further medical releases were necessary, at least until a replacement job was located. However, it should be emphasized that here we are only addressing Smith's potential ability to withstand summary judgment. Smith v. Midland Brake, Inc., 180 F.3d 1154, 1174 (10th Cir. 1999).

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This passage makes little sense unless it means that the plaintiff can survive summary judgment by raising a genuine issue of fact as to the defendants' participation in good faith in the interactive process. If Midland Brake were so interpreted, the Tenth Circuit would not be alone. Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944 (8th Cir. 1999); Barnet v. U.S. Air, 228 F.3d 1105, 1115-16 (9th Cir. 2000) vacated and remanded on other grounds U.S. Air v. Barnet, 535 U.S. 391 (2002). The case of Frazier v. Simmons does not contradict Hines because the facts in Frazier fall within the exceptions Hines recognized in Midland Brake. In Frazier, accommodation was impossible or unreasonable as a matter of law, and therefore the interactive process was unnecessary. See Hines, 231 F.Supp. 2d at 1048. The plaintiff in Frazier was unable to engage in violent activity, running, or handling a firearm. Frazier v. Simmons, 254 F.3d 1247, 1257 (10th Cir. 2001). All of the jobs the plaintiff sought, or was otherwise qualified to perform, at least required violent activity and running, and some required using a firearm. Id. at 1259, 1260, 1262, 1263. Thus, accommodation by reassignment was impossible. In Frazier, defendants produced evidence as to the specific job requirements, thus impossibility could be determined. The plaintiff in Frazier also suggested eliminating the tasks requiring violent activity, however, this would have altered the essential function, and would be unreasonable as a matter of law. Frazier, 254 F.3d at 1261. It appears that the Tenth Circuit may have been dodging the interactive process obligations addressed in Hines, because the court declined to address the issue of placing disabled plaintiffs in a "Catch-22." Id. at 1256 FN 5. The most obvious "Catch-22" is refusing to require a good faith interactive process by the employer, but requiring employees to identify specific jobs and accommodations to survive summary judgment.

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III.

THIS IS AN APPROPRIATE CIRCUMSTANCE FOR THE COURT TO RECONSIDER IN PART ITS ORDER OF SUMMARY JUDGMENT A. It is Appropriate for this Court to Reconsider the Interlocutory Summary Judgment Order so as to Follow the Hines Decision The defendants spend a substantial amount of time arguing that the Hines decision is not

binding precedent and is not "controlling authority."1 This appears to be in response to part one of the test for reconsideration under rule 59(e). However, as described above, that test does not apply in this case. Plaintiffs acknowledged from the start that this court was not strictly bound to follow Hines, but pointed out that there were strong reasons to do so as articulated under the rule of stare decisis. None of the cases cited by defendants denies the persuasive quality of published district court decisions, although the Seventh Circuit comes close in Midlock. Of course, this court is no more bound by a Seventh Circuit decision than it is a decision of a fellow judge from this district. Further, each of the circumstances presented in the cases cited by defendants differs from this one. Willner v. Budig, held that one judge was not bound to follow the procedures established by a fellow district court judge for deciding attorney fees motion. 848 F.2d 1032m 1035 (10th Cir. 1988). In Starbuck v. San Francisco, it appears that a district court case was being cited as precedent to the Ninth Circuit, and at most the Ninth Circuit said that one district judge was not "compelled" to follow the decision of another. 556 F.2d 450, 457 FN 13 (9th Cir. 1977). Midlock v. Apple Vacation West, Inc., involved a district court decision without any explanation by the judge. 406 F.3d 453, 457 (7th Cir. 2005). Threadgill v. Armstrong World Ind., Inc., involved an unpublished bench ruling by a federal district court judge. 928 F.2d 1366, 1371
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Defendants' position in regard to the persuasive value of the published Hines case is ironic considering the number of times defendants have cited to district court opinions, including unpublished opinions, throughout this case.

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(3rd Cir. 1991). Hines, was a published decision, on an issue of law, with substantial explanation and analysis. Stare decisis means: "To abide by, or adhere to, decided cases." Black's Law Dictionary, Rev. 4th Ed., 1968, p. 1577. "Under the doctrine a deliberate or solemn decision of court made after argument on [a] question of law fairly arising in the case, and necessary to its determination, is an authority, or binding precedent in the same court, or in other courts of equal or lower rank in subsequent cases where the very point is again in controversy." Black's Law, supra citing State v. Melenberger, 163 Or. 233. While this court is not bound by the decisions from this same district in other cases, the policy considerations underlying stare decisis still apply. This is especially true where federal district courts are authoring published decisions on important substantive issues of federal law. While those decisions may have less persuasive effect across district lines, individuals within the same district should expect to be treated the same. Such treatment will help foster respect for the rule of law and fair and just treatment of litigants. State Oil Co. v. Khan, 522 U.S. 3, 20 (1997). B. This Is An Appropriate Case For Reconsideration

This is an appropriate circumstance for reconsideration because it involves the proper interpretation of binding case law that has not been fully developed or addressed by the parties. Plaintiffs are not simply trying to take a second bite at the apple. If that were the case, plaintiffs would be seeking reconsideration of the entire summary judgment decision, not just the portion addressed by Hines. Defendants' assertions that plaintiffs are simply trying to "rehash" old arguments is also incorrect. While the interactive process has been addressed, Hines has not been addressed, and Midland Brake has been given only marginal attention.

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Defendants, in their Memorandum of Authorities in Support of Revised Motion for Summary Judgment, do not address the interactive process or its role in determining whether an individual is qualified. They neither supported nor attacked the interactive process, but simple ignored it. Plaintiffs, in the Memorandum of Authorities in Support of Response to Defendants' Revised Motion for Summary Judgment, asserted that the interactive process was required, and failure to engage in such process prohibited summary judgment on the issue of whether a plaintiff was qualified, at pages eight through nine and twenty-five through twenty-seven. Plaintiffs did not rely on any one case, but cited to numerous circuit court cases to explain the general state of the law. While Midland Brake was cited, it was not thoroughly analyzed. Defendants' reply memorandum at page twenty-five cites to Frazier, and cases therein, for the proposition that the failure to engage in the interactive process does not prohibit summary judgment. Defendants do not analyze the issue beyond quoting a line from the case, and some lines from the cases cited in Frazier. Plaintiffs, of course, had no opportunity to address the defendants' reply memorandum. The court, in the summary judgment order, interpreted Midland Brake as not applying the interactive process to the "qualified" element of an ADA case. However, the court made this determination without the benefit of an analysis of the case, or argument thereon. Plaintiffs could not have predicted the court's reliance on or interpretation of Midland Brake in advance of the summary judgment ruling. Thus, plaintiffs had no reason to cite Hines in the response memorandum, as Hines primarily serves to explain and interpret Midland Brake. Because the court relied on Midland Brake to make its decision in regard to the interactive process, it is

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appropriate for plaintiffs to point out the alternate interpretation that the case has already been given by another court in this same district. This is not simply rehashing old arguments; it is addressing gaps in the briefing that may lead the court to a different conclusion than was originally reached. CONCLUSION It is appropriate for the court to reconsider its interlocutory order based on a non-binding, but persuasive, opinion. Wilson v. Merrell Dow Phams., 160 F.3d 625, 628 (10th Cir. 1998). The court has discretion to reconsider its interlocutory orders, and change them if appropriate. The decision in Hines is persuasive authority which this court should follow. Following Hines will help ensure consistent interpretation of the laws, fair and just outcomes, and the efficacy of the rule of law. These are all policy goals underlying the rule of stare decisis. Plaintiffs therefore request that the court reinstate the claims of John Bartlett and Thomas Richards for failure to accommodate and wrongful termination in violation of the ADA. RESPECTFULLY SUBMITTED this 22nd day of August, 2005.

s/J. Keith Killian J. Keith Killian Joanna C. Jensen Damon Davis Killian, Guthro & Jensen, P.C. 225 N. 5th Street Grand Junction, CO 81501 Telephone: (970) 241-0707 FAX: (970) 242-8375 E-mail: [email protected] Attorney for Plaintiffs Michael E. Clawson and Jared L. Dillon

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UNITED STATES DISTRICT COURT FOR THE DISTRIT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on August 22, 2005, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following e-mail addresses: [email protected] [email protected] and, I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants in the manner (mail, hand-delivery, etc.) indicated by the non-participant's name: Mr. Michael Clawson 38506 Back River Road Paonia, CO 81428 Mr. Jared Dillon 35404 Back River Road Hotchkiss, CO 81419 Mail

Mail

s/J. Keith Killian J. Keith Killian Attorney for Plaintiffs Killian, Guthro & Jensen, P.C. 225 N. 5th Street Grand Junction, CO 81501 Telephone: (970) 241-0707 Fax: (970) 242-8375 [email protected]

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