Free Motion for Reconsideration - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action 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. 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 Motion For Partial Reconsideration of the Summary Judgment Order of March 15, 2005, and in support thereof, state as follows: INTRODUCTION On March 15, 2005, this court entered an extensive summary judgment order. Plaintiffs request that the court reconsider the order in part, and reinstate the ADA failure to accommodate and ADA wrongful termination claims of John R. Bartlett and Thomas E. Richards. This request is based on the Order and Memorandum of Decision of the Federal District Court for the District of Colorado in Hines v. Chrysler Corp., published at 231 F.Supp. 2d. 1027 (D. Colo. 2002). The request is supported by the doctrine of stare decisis and is in the interest of justice and uniform

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enforcement of the laws. As described more fully below, the holding of Hines is contrary to the interpretation of Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999) contained in the Summary Judgment Order of March 15, 2005. Under Hines the claims of Bartlett and Richards for failure to accommodate in violation of the ADA and wrongful termination in violation of the ADA should not have been dismissed. The court retains its authority to reconsider its earlier order and to reinstate the claims of Bartlett and Richards.1 This is a case in which the court should exercise its authority. I. UNDER THE HOLDING OF HINES v. CHRYSLER CORP. SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED ON THE CLAIMS OF BARTLETT AND RICHARDS FOR FAILURE TO ACCOMMODATE A. Plaintiff's Initial Arguments And The Basis Of The Summary Judgment Decision

In opposition to summary judgment, plaintiffs, including Bartlett and Richards, argued that there were two ways in which they could meet their burden of showing a genuine issue of fact in regard to the second element of both the failure to accommodate and wrongful termination claims. This element is whether the individual is qualified to perform the essential function of a job he holds or desires, with or without reasonable accommodation. As the court noted, this element is identical in both failure to accommodate and wrongful discharge claims. Order at 21. Plaintiffs' argument is contained in "Plaintiffs Memorandum of Authorities in Support of Response to Defendants' Revised Motion for Summary Judgment"(Memorandum) filed on April 23, 2004. Plaintiffs argued that their burden on this second element could be met by producing evidence of a failure to engage in good faith in the interactive process.

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Plaintiffs are not requesting that the court reconsider its decision on the ADA retaliation claims or the state law claims as those decisions were based on different issues of law which were not addressed in Hines v. Chrysler Corp.

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Memorandum at p. 8-10. In regard to Bartlett, it was argued that the evidence raised a question of fact as to whether he was qualified, and as to whether defendants had engaged in the interactive process with him. Memorandum a p.24-29. The same arguments were made in regard to Richards. Memorandum at p.33. Plaintiffs produced substantial evidence that defendants failed to engage in the interactive process. This court's summary judgment order disagreed with plaintiffs' interpretation of the interactive process. The court interpreted Midland Brake to stand for the proposition that the failure to engage in the good faith process only goes to the third element of failure to accommodate, and does not apply to the qualified requirement. Order at p.18. The court found that Bartlett and Richards had produced insufficient evidence to raise a question of fact as to whether they were qualified. The court dismissed Bartlett's claims for wrongful discharge and failure to accommodate on all three bases; actual disability, record of disability, and regarded as disabled. The court dismissed Richards's claims for wrongful discharge and failure to accommodate based upon his argument that he was regarded as disabled. Plaintiffs could not anticipate this court's interpretation of Midland Brake, and thus the Hines case was not cited by plaintiffs. However, the interpretation of Midland Brake contained in Hines is contrary to the interpretation contained in the summary judgment order. B. The Hines Decision is Persuasive Authority That Failure to Engage in the Interactive Process Prohibits Summary Judgment on the Issue of Whether the Employee is Qualified

The Hines court stated the following, "the law in this circuit is that, if a court determines there is a genuine issue of material fact as to whether the employer participated in the interactive process in good faith, summary judgment for the employer must be denied, unless the court

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determines that the interactive process was unnecessary because the accommodation sought by the employee was unreasonable as a matter of law, obvious, or impossible." Hines, 231 F.Supp. 2d 1027, 1048 (D. Colo. 2002). The issue before the court in Hines was almost identical to the issue before this court. In Hines the defendant argued its failure to engage in the interactive process was irrelevant to the summary judgment determination because the plaintiff still had to produce evidence of a vacant position to which she could be reassigned. Id. at 1047. The District Court clearly disagreed. The court in Hines began with a careful analysis of the language of Midland Brake and the cases cited therein. In Smith, the Tenth Circuit clearly stated that, "summary judgment would be premature if there is a genuine dispute regarding whether [the employer] participated in good faith in attempting to secure a reassignment position for [the employee] as part of its duty to offer a reasonable accommodation to [the employee]." The court elaborated, "it should be emphasized that here we are only addressing [the employee's] ability to withstand summary judgment." Accordingly, although Hines must succeed on all five prongs of her prima facie case at trial, the Tenth Circuit clearly stated that an employee withstands summary judgment if she can prove that there is a genuine issue of material fact as to whether the employer failed to participate in the interactive process in good faith. Hines, 231 F.Supp. 2d. at 1047 (internal citations omitted) quoting Smith v. Midland Brake, Inc., 180 F.3d 1154, 1174 (10th Cir. 1999). The Hines court interpreted the Tenth Circuit's reference to Taylor v. Phoenixville Sch. Dist., 174 F.3d 142 (3rd Cir. 1999) and Willis v. Conopco, Inc., 108 F.3d 282 (11th Cir. 1997) as providing the three exceptions when the interactive process are unnecessary. Hines, 231 F.Supp. 2d at 1047. The three exceptions are where the accommodation requested is unreasonable as a matter of law, the accommodation is obvious, or the accommodation is impossible. Id.

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The Hines court also explained the following line from Midland Brake: "Even if [the employer] failed to fulfill its interactive obligations to help secure a reassignment position, [the employee] will not be entitled to recovery unless he can also show that a reasonable accommodation was possible and would have led to a reassignment position." Hines, 231 F.Supp. 2d at 1049 quoting Smith v. Midland Brake, Inc. The explanation is as follows: The court does not mention summary judgment, but instead refers to the employee's right to "recovery." The use of the word "recovery" leaves open the possibility that the Tenth Circuit intended to mean that, if a court finds that the interactive process was necessary, and there is a genuine issue of material fact as to whether the employer participated in good faith in the interactive process, the subsequent determination of whether a reasonable accommodation would have existed, had the employer participated in the good faith interactive process, is inherently a question of fact that is not properly decided by the court on summary judgment. As I have already indicated, this interpretation is consistent with other portions of the court's decision in Smith. Hines, 231 F.Supp. 2d at 1049. The Hines court also cited a variety of policy reasons in support of this interpretation of Midland Brake. "[I]f there is no mechanism in place to enforce the employer's duties in the interactive process, the ADA's requirements will be meaningless." Hines, 231 F.Supp. 2d at 1050. Thus, "if an employer fails to engage in the process . . . the employer should not be entitled to summary judgment." Id. Any other rule would reward the employer for failing to comply with the ADA, because failing to engage in the interactive process makes it more difficult for the employee to prove that a reasonable accommodation existed. Id. citing Phoenixville Sch. Dist., 174 F.3d at 161, 163. Furthermore, "the determination of whether a reasonable accommodation existed at the time the employee requested accommodation will necessarily involve some amount of speculation as to how the employer's failure to cooperate with the employee affected the employee's inability to identify a reasonable accommodation. 5

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Hines 231 F.Supp 2d at 1051. The jury is allowed to take into account the employer's failure to engage in the interactive process in determining whether there was an unmentioned accommodation available to the employee. Id. citing Phoenixville Sch. Dist., 174 F.3d at 163. This is similar to introducing evidence that a party has destroyed evidence; it allows an inference that the evidence was inimical to the destroyer. Thus, it is better for the jury to make the determination of whether an accommodation was possible, taking into account the employer's failure to engage in the interactive process, and what the employer may have been hiding by its failure to participate. Hines, 231 F.Supp. 2d at 1051. Finally, fairness dictates that the employer not benefit from making it harder for the employee to prove a reasonable accommodation exists. Id. When the employer has failed to participate in the interactive process, prohibiting summary judgment, but requiring the employee to meet all of his elements at trial, strikes a proper policy balance. Id. C. Bartlett and Richards Produced Evidence Sufficient to Survive Summary Judgment2 1. Bartlett

Bartlett presented evidence that he was actually disabled, as described in plaintiffs' Memorandum at pages 15 through 24. Specific evidence, with citations to plaintiffs' summary judgment appendix, are presented in the Plaintiffs' Response to Defendants' Revised Motion for Summary Judgment filed April 23, 2004, at pages 3 through 7, paragraphs B.1.a through B.1.oo. Bartlett presented evidence that he had a record of disability as described in the Memorandum at pages 29 through 30. Specifics, with citations to plaintiffs' summary judgment appendix are
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Rather than burden the court and opposing counsel with refilling the plaintiffs' summary judgment response and memorandum, plaintiffs will refer to specific portions of those documents already filed with the court and incorporate them by reference.

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contained in the Response in the same paragraphs as the evidence of actual disability. Defendants did not challenge whether any of the plaintiffs were regarded as disabled. Defendants did not attempt to prevail on the issue of whether they failed to accommodate Bartlett, and thus plaintiffs were not required to present evidence on this subject. Defendants did not challenge that any of the plaintiffs were discriminatorily terminated. Bartlett presented evidence that defendants failed to engage in the interactive process in good faith as described in the Memorandum pages 8 through 10 and pages 25 through 27. Specifics, with cites to plaintiffs summary judgment appendix, are provided in the Response, pages 7 through 12, paragraphs B.2.a through B.2.ii. 2. Richards

Defendants did not dispute whether Richards was regarded as disabled. Further, defendants did not attempt to prevail on the issue of whether they failed to accommodate Richards, or whether they fired him because of his disability, and thus Richards was not required to present evidence on the subject. Richards produced evidence that defendants failed to engage in the interactive process in good faith as described in the Memorandum at page 33. For specifics and citations to plaintiffs' summary judgment appendix please see plaintiffs' Response paragraphs IV.B.1.ccc, p. 22 through 23. II. THIS COURT SHOULD OBSERVE THE DOCTRINE OF STARE DECISIS AND FOLLOW THE CASE OF HINES v. CHRYSLER CORP. While published decisions from this district are not strictly binding on this court, such decisions are persuasive authority. Jackson v. Johns, 714 F.Supp. 1126, 1130 (D. Colo. 1989). Following published decisions of this district promotes certainty and respect for the rule of law. "We feel that one panel of the court should not lightly overrule a decision by another panel. To 7

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do so puts the law in a state of flux, and no one can tell what the law will be until the composition of the court is determined." United States v. United States Vanadium Corp., 230 F.2d 646, 649 (10th Cir. 1956). "Ordinarily, Judges who sit on the same court should attempt to avoid inconsistent decisions `except for the most cogent reasons.' The failure to follow this general rule lends great uncertainty and unpredictability to a proper analysis of legal issues." Eaton Land and Cattle Co. II v. Rocky Mnt. Investments, 28 B.R. 890, 892 (Bnkr Colo. 1983) (internal citations omitted). Thus, although this court is not strictly bound to follow the decisions of this district, there is a strong policy in the law that it do so unless compelling reasons dictate an alternate course. The doctrine of Stare Decisis is fundamental to American jurisprudence and serves many important purposes. "The rule of stare decisis is essential if case-by-case judicial decisionmaking is to be reconciled with the principle of the rule of law, for when governing legal standards are open to revision in every case, deciding cases becomes a mere exercise of judicial will, with arbitrary and unpredictable results." Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 786-87 (1985)(White Dissent). "Stare Decisis reflects a policy judgment that in most matters it is more important that the applicable rule of law be settled than that it be settled right. It is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process." State Oil Co. v. Khan, 522 U.S. 3, 20 (1997)(internal citations omitted). These important policies are implicated in the weight this court gives the decision in Hines. It is important that the law which governs thousands of employment relationships in the

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state of Colorado be settled. Employers need to know what their obligations are, and employees need to know their rights. If the judges of this district conflict in their interpretation of the laws, then people do not know what the law is, and it will become impossible for attorneys to advise their clients. On the other hand, application of the rule of stare decisis will promote certainty as well as respect for the laws and the courts that enforce them. The rule established in Hines is clear and not difficult to follow or explain. The Hines decision is supported by sound logic and a thorough analysis of Midland Brake. There is no compelling reason to deviate from the Hines case, and this court should follow that decision. III. THIS COURT RETAINS THE AUTHORITY TO REINSTATE THE DISMISSED CLAIMS, AND THIS IS AN APPROPRIATE CASE FOR THE EXERCISE OF SAID AUTHORITY The court has yet to enter a final judgment in this case because the claims of Clawson and Dillon remain before it. Fed. R. Civ. P. 54(b). This court did not make the findings to enter a final judgment on less than all of the claims as the rule requires and consequently did not enter such a judgment. A court retains the authority to reconsider orders of partial summary judgment until a final judgment is entered. Northwest Central Pipeline Corp. v. JER Partnership, 943 F.2d 1219, 1223-25 (10th Cir. 1991). "Until final decree the court always retains jurisdiction to modify or rescind a prior interlocutory order." Lindsey v. Dayton-Hudson Corp., 592 F.2d 1118, 1121 (10th Cir. 1979). "This inherent power 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 Brokers, Ltd. v. Jim Williamson Prods., Inc., 115 F.Supp. 2d 1250, 1256 (D. Colo. 2000). "Thus, a court can alter its interlocutory orders even where the more stringent

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requirements applicable to a motion to alter or amend a final judgment under Rule 59(e) or a motion for relief from judgment brought pursuant to Rule 60(b) are not satisfied." Id. This is an appropriate case for the court to exercise its authority to reconsider interlocutory orders and for the court to reinstate the ADA failure to accommodate and wrongful discharge claims of Bartlett and Richards. Plaintiffs did argue that demonstrating a question of fact that defendants did not engage in the interactive process in good faith should allow them to survive summary judgment on the issue of whether they were qualified under the ADA. Plaintiffs did not anticipate the court's interpretation of Midland Brake, and thus did not cite the Hines case in support of their argument. However, the Hines case does support plaintiffs' argument and is contrary to the interpretation of Midland Brake utilized in the summary judgment order. The Hines case should be followed not only for its sound legal reasoning, but also under the rule of stare decisis and the important policies that rule upholds. There is also an issue of basic fairness and justice at stake. The law that applies to a party should not vary from judge to judge such that a party will be treated more favorably by one judge and less favorably by another. If this court fails to apply the holding in Hines, that is what will happen here to Bartlett and Richards. As a result, there would be different standards for ADA accommodation cases within the same district. Plaintiffs are asking the court to reconsider a pure issue of law, an issue that could not be addressed until after the court's ruling interpreting Midland Brake, and an issue that implicates important fairness concerns and policies under the rule of stare decisis. This is an appropriate case for the court to exercise its authority and reconsider its previous order.

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CONCLUSION The Federal District Court for the District of Colorado determined in Hines v. Chrysler Corp. 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 the interactive process in good faith. This court should follow that decision to ensure fairness to the litigants and to further the policy considerations protected by the doctrine of stare decisis. Defendants did not challenge that Bartlett and Richards were regarded as disabled. Additionally, Bartlett produced evidence that he was actually disabled and had a record of disability. There has been no suggestion that an accommodation for Bartlett or Richards is unreasonable as a matter of law, obvious, or impossible. There is ample evidence that defendants refused to engage in the interactive process in good faith. Therefore, plaintiffs respectfully request that the court reconsider its order of summary judgment in part and reinstate the ADA failure to accommodate and ADA wrongful discharge claims of Bartlett and Richards. CERTIFICATE OF COMPLIANCE WITH D.C.COLO.L.CivR 7.1 Plaintiffs sent a letter to defendants on July 7, 2005, informing them that plaintiffs intended to file this motion based on Hines v. Chrysler Corp. Plaintiffs sent a copy of the motion to defendants on July 12, 2005. On July 14, 2005, Jeff Johnson, called and spoke to Damon Davis and informed him that defendants' object to the relief requested. RESPECTFULLY SUBMITTED this 15th day of July, 2005.

s/Damon Davis J. Keith Killian Joanna C. Jensen Damon Davis Killian, Guthro & Jensen, P.C. 11

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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 DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF)

I hereby certify that on July 15, 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 Mr. John Bartlett 3112 Sumac Street Fort Collins, CO 80526 Mr. Thomas E. Richards P.O. Box 391 Hotchkiss, CO 81419 Mail

Mail

Mail

Mail

s/Damon Davis Damon Davis 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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