Free 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 D ISTRICT O F COLORADO Civil Action No. 01-cv-2199-MSK-OES MICHAEL E. CLAWSON and JARED L. DILLON, Plaintiffs, vs. MOUNTAIN COAL COMPANY, L.L.C., ARCH WESTERN RESOURCES, L.L.C., and ARCH COAL, INC. Defendants.

DEFENDANTS' RESPONSE TO PLAINTIFFS' MOTION FOR PARTIAL RECONSIDERATION OF THE SUMMARY JUDGMENT ORDER OF MARCH 15, 2005

Defendants, by their attorneys Holland & Hart LLP, hereby submit their response in opposition to Plaintiffs' Motion for Partial Reconsideration of the Summary Judgment Order of March 15, 2005 ("Plaintiffs' Motion") (Docket No. 352). By their Motion, filed July 15, 2005, Plaintiffs seek reconsideration of a portion of the Court's Order of March 15, 2005 granting, in part, Defendants' Revised Motion for Summary Judgment. In that Order, the Court dismissed, among other claims, the ADA claims for failure to accommodate and discriminatory termination of former plaintiffs Bartlett and Richards. To prevail on a claim under the ADA, a plaintiff must establish that (1) he is disabled, as defined by the ADA; (2) he is qualified, with or without reasonable accommodation, to perform the essential functions of the job held or desired; and (3) the employer discriminated against him because of the disability, by failing to accommodate him and/or terminating him. See Court's

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Order at 12-13 & 19, citing Davidson v. America Online, Inc., 337 F.3d 1179, 1188 (10th Cir. 2003). The Court dismissed the ADA claims of Bartlett and Richards because each had failed to put forth sufficient evidence that he was qualified to perform a job he held or desired, with or without a reasonable accommodation. Id. at 18-21. I. Plaintiffs Fail to State Proper Grounds for Reconsideration The grounds which may properly support a motion for reconsideration include: "(1) an intervening change in controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice." Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000), citing Brumark Corp. v. Samson Resources Corp., 57 F.3d 941, 948 (10th Cir. 1995). Therefore, "a motion for reconsideration is appropriate where the court has misapprehended the facts, a party's position, or the controlling law." Id. In their Motion, Plaintiffs do not contend that there has been either an intervening change in the controlling law or that there is new evidence, previously unavailable, that should alter the Court's ruling on summary judgment. Nor do Plaintiffs argue that the Court's ruling is contrary to controlling law, i.e., clear error, or that it will result in manifest injustice. In fact, the basis upon which they seek reconsideration does not fall within any of the allowable grounds. Plaintiffs' request for reconsideration is based upon Judge Nottingham's decision in Hines v. Chrysler Corp. 231 F.Supp.2d 1027 (D. Colo. 2002), in which, according to Plaintiffs, the Court noted that "a defendant is not entitled to summary judgment on the issue of whether an employee is qualified under the ADA if there is a question of fact as to whether the employer has engaged in good faith in the interactive process." Plaintiffs' Motion at 11. Plaintiffs contend that, under the reasoning of Hines, the Court should not have granted summary judgment to Defendants here

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because Bartlett and Richards created an issue of fact as to whether Defendants engaged in good faith in the interactive process. Id. Plaintiffs' argument is fatally flawed for several reasons. First, Plaintiffs made the same argument in response to summary judgment that they now seek to advance in this motion. In fact, Plaintiffs concede that, in their response to Defendants' Revised Motion for Summary Judgment, filed April 23, 2004, they argued that they could meet their burden on the qualified element "by producing evidence of a failure to engage in good faith in the interactive process." Motion at 2. In making such argument, Plaintiffs did not cite to Hines, despite the fact that such decision had been issued in September 2002, more than a year and a half earlier. Moreover, the Court expressly considered and rejected such argument in its March 15, 2005 Order. See Order at 18-19. The Tenth Circuit has noted that "[i]t is not appropriate [on a motion for reconsideration] to revisit issues already addressed or advance arguments that could have been raised in prior briefing. Servants of the Paraclete, 204 F.3d at 1012. See also Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991) (affirming district court's denial of motion to reconsider on grounds that motion revisited issues already addressed and advanced arguments that could have been made when original summary judgment motion briefed). Regardless, Plaintiffs contend that their request is supported by the doctrine of stare decisis and is in the interest of justice. In fact, Hines is not the controlling law and thus, as even Plaintiffs recognize at page 7 of their Motion, this Court is not bound by its reasoning. See, e.g., Willner v. Budig, 848 F.2d 1032, 1035 (10th Cir. 1988), cert. denied, 488 U.S. 1031 (1989) (the decision of one district judge is not binding on other district judges). Plaintiffs contend that the

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doctrine of stare decisis weighs heavily in favor of following another district court decision. However, as noted in Willner, "the doctrine of stare decisis does not compel one district judge to follow the decision of another." Id., citing Starbuck v. City & Cty. of San Francisco, 556 F.2d. 450, 457 n. 13 (9th Cir. 1977). See also Midlock v. Apple Vacations West, Inc., 406 F.3d 453, 457 (7th Cir. 2005) (noting that "a district court decision does not have stare decisis effect; it is not precedent"); Threadgill v. Armstrong World Ind., Inc., 928 F.2d 1366, 1371 (3rd Cir. 1991) (same). The Seventh Circuit noted in Midlock that another district court decision, if wise and well-reasoned, is, in essence, no different than a persuasive article or treatise, but "[t]he fact of such a decision is not a reason for following it." 406 F.3d at 458. Therefore, the decision in Hines is not controlling law and, even if this Court's Order on summary judgment were contrary to the reasoning of Hines, it does not provide a proper ground for reconsideration. 1 This is particularly the case when Plaintiffs could have, but failed, to cite to Hines in response to the original summary judgment motion. A motion for reconsideration "is not a license for a losing party's attorney to get a `second bite at the apple' and make legal arguments that could have been raised before." Johnston v. Cigna Corp., 789 F.Supp. 1098, 1101 (D. Colo. 1992), aff'd, 14 F.3d 486 (10th Cir. 1993), cert. denied, 514 U.S. 1082 (1995). On this basis alone, the Court should deny Plaintiffs' Motion for Reconsideration.
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Arguably, this Court's Order is not inconsistent with the Hines decision. In Hines, Judge Nottingham noted that summary judgment would still be appropriate if the court determined that the interactive process was unnecessary because the accommodation sought by the employee was unreasonable as a matter of law, obvious, or impossible. Plaintiffs' Motion at 3-4, quoting Hines. In Hines, the plaintiff came forward with evidence of accommodations that may have been reasonable or possible, creating an issue of fact as to whether she was qualified. Hines, 231 F.Supp.2d at 1044-45. By contrast, the Court here held that neither plaintiff came forward with evidence of positions for which he was qualified, with or without an accommodation, and thus did not show that he could meet the qualified element. Court's Order at 18-21.

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II.

The Controlling Law Supports the Court's Summary Judgment Order. In any event, the Court's Order on summary judgment is entirely consistent with the

controlling law in the Tenth Circuit; it is Plaintiffs' argument and its interpretation of Hines which are at odds with the clearly stated binding precedent. Plaintiffs argue that Hines stands for the proposition that a defendant may not be granted summary judgment on an ADA claim if there is a question as to whether it properly engaged in the interactive process. To the extent Hines does stand for such proposition, Defendants believe that such holding is actually contrary to the Tenth Circuit's decision in Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999), upon which it purports to rely, and its progeny. It is clear from the Tenth Circuit decision in Midland Brake that a plaintiff, in order to prove a prima facie case, must present evidence that, among other things, there was a vacant position for which he was qualified, with or witho ut a reasonable accommodation. Id. at 1179. A plaintiff must meet such burden regardless of whether the parties engaged in the interactive process. Id. Therefore, even if there is evidence that a defendant, at the time accommodation was requested, failed to engage in the interactive process, if the plaintiff cannot, at the time of summary judgment, show that an accommodation may have been possible, the claim should be dismissed, since, at trial, the plaintiff will be unable to prove an essential element of his prima facie case. Id. (holding that "[t]o survive summary judgment," the employee bears the initial burden to show that he "was qualified, with or without reasonable accommodation, to perform one or more appropriate vacant jobs within the company that the employee must, at the time of the summary judgment proceeding, specifically identify"). In fact, subsequent to Midland Brake, the Tenth Circuit again made clear that summary judgment for the employer should be granted when the plaintiff fails to present sufficient

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evidence regarding vacant positions for which he was qualified, regardless of what happened (or failed to happen) in the interactive process. For example, in Frazier v. Simmons, 254 F.3d 1247, 1262 (10th Cir. 2001), the plaintiff made the same argument as advanced here by Bartlett and Richards, i.e., that summary judgment was inappropriate because his employer failed to engage in any meaningful interactive process. The Tenth Circuit specifically held that "even if the employer failed to sufficiently engage in the interactive process, the employer can still prevail on summary judgment if the employee failed to `show that a reasonable accommodation was possible and would have led to a reassignment position.'" Id. at 1261, quoting Midland Brake, 180 F.3d at 1174, and citing, inter alia, Donahue v. Consolidated Rail Corp., 224 F.3d 226, 234 (3rd Cir. 2000) (holding "in a failure-to-transfer case, if, after a full opportunity for discovery, the summary judgment record is insufficient to establish the existence of an appropriate position into which the plaintiff could have been transferred, summary judgment must be granted in favor of the defendant ­ even if it also appears that the defendant failed to engage in the interactive process."). The Tenth Circuit affirmed the district court's award of summary judgment for the employer in Frazier because the plaintiff failed to show that a reasonable accommodation was possible and would have led to a reassignment position. 254 F.3d at 1263. The Tenth Circuit's reasoning was the same reasoning used by this Court in the order granting summary judgment against Bartlett and Richards on their claims for failure to accommodate and discriminatory termination under the ADA. Thus, Plaintiffs' contention that the Court's Order is contrary to "persuasive" law is flawed. In fact, it is Plaintiffs' interpretation of Hines and the argument set forth in the Motion for Reconsideration that are contrary to binding Tenth Circuit precedent.

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Therefore, even if Plaintiffs' Motion is properly before the Court, its basic premise is incorrect, and thus, the Order of March 15, 2005 should not be reconsidered. III. CONCLUSION For the reasons set forth above, Plaintiffs' Motion for Reconsideration of the Summary Judgment Order of March 15, 2005 should be denied. Dated: August 4, 2005. Respectfully submitted,

s/Monique A. Tuttle Jeffrey T. Johnson Monique A. Tuttle HOLLAND & HART LLP 555 Seventeenth Street, Ste. 3200 Post Office Box 8749 Denver, Colorado 80201 Telephone: (303) 295-8000 Facsimile: (303) 295-8261 E- mail: [email protected] [email protected] ATTORNEYS FOR DEFENDANTS

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CERTIFICATE OF SERVICE (CM/ECF)

I hereby certify that on August 4, 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 email addresses: [email protected] [email protected] I am not aware of any non CM/ECF participants in this matter requiring service by other means.

s/Monique A. Tuttle Monique A. Tuttle Attorneys for Defendants HOLLAND & HART LLP 555 Seventeenth Street, Ste. 3200 Post Office Box 8749 Denver, Colorado 80201 Telephone: (303) 295-8000 Facsimile: (303) 295-8261 E- mail: mtuttle@hollandha rt.com

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