Free Order on Motion for Reconsideration - District Court of Arizona - Arizona

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NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

) ) ) Plaintiff, ) ) vs. ) ) Ralph E. Ogden; Yuma County Sheriff's) ) Office; Yuma County, ) ) Defendants. ) ) Thomas J. Larios,

No. CIV 03-2285-PHX-SRB OPINION AND ORDER

This matter comes before the Court on Motion by Defendants Yuma County Sheriff's Office ("YCSO") and Yuma County for Reconsideration of a portion of the Court's Order dated July 15, 2005. For the reasons stated below, the Motion for Reconsideration (Doc. 46) is denied. I. BACKGROUND The Court refers to the background facts as recited in its July 15, 2005 Order and, for the sake of brevity, declines to repeat them here. Any new evidence submitted to the Court in connection with the Motion for Reconsideration and its responsive pleadings has also been reviewed. II. LEGAL STANDARDS AND ANALYSIS Defendants seek reconsideration of the portion of the Court's July 15, 2005 Order denying summary judgment on Plaintiff's claim of disability discrimination in violation of
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the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C.A. § 12101 et seq. In support of their Motion for Reconsideration, Defendants argue that the Court erred: (1) in asking whether a genuine issue of material fact existed concerning the breakdown in the interactive process prior to determining whether Plaintiff met his burden of demonstrating the existence of a plausible or facially-reasonable accommodation; (2) by finding that a genuine issue of material fact remains as to the parties' participation in the interactive process and fault for its breakdown. In addition, Defendants contend that summary judgment is appropriate because the only accommodation presented by Plaintiff would have placed an undue hardship on Defendants. Defendants are correct that an employer need only come forward with evidence of undue hardship after an employee-plaintiff demonstrates the existence of an accommodation that is plausible or reasonable on its face. See U.S. Airways v. Barnett, 535 U.S. 391, 401-2, 122 S. Ct. 1516, 1523 (2002). The Court also acknowledges that the Seventh Circuit's recent opinion in Jackson v. City of Chicago, 414 F.3d 806, 813 (7th Cir. 2005), found that "when considering the success of the interactive process, we 'first look at whether there is a genuine issue of material fact regarding the availability of a vacant position to accommodate' the employee." Id. (quoting Ozlowski v. Henderson, 237 F.3d 837, 840 (7th Cir. 2001)). This Court is not bound by that decision, however, and declines to follow it. It is more consistent with the spirit of Ninth Circuit jurisprudence, including Zivkovic v. Southern California Edison Co., 302 F.3d 1080 (9th Cir. 2002), to first look at participation in the interactive process, and next place the burden on an employee-plaintiff to demonstrate the existence of a reasonable accommodation. Requiring a plaintiff to identify reasonable accommodations where his employer has not participated in the interactive process and the plaintiff may be unaware of the gamut of possible accommodation is not only impractical, but also provides employers with an incentive to refuse to fully engage in the interactive process in the hopes that the plaintiff will later be unable to point to an available, plausible accommodation at the summary judgment stage. It therefore was not legal error to deny Defendants' summary judgment motion where a genuine issue of material fact persisted concerning responsibility -2Case 2:03-cv-02285-SRB Document 54 Filed 09/01/2005 Page 2 of 4

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for the breakdown in the interactive process, even in the absence of evidence of the availability of a plausible accommodation. Defendants do not confine their Motion for Reconsideration, however, to arguments concerning the order in which elements of an ADA case must be considered. They also seek reconsideration of the Court's determination that genuine issues of material fact remain as to Defendant's responsibility for the breakdown in the interactive process. As discussed in the July 15, 2005 Order, even if Plaintiff made known his preference for a particular accommodation, there is some evidence to suggest that Defendants did not fulfill their "affirmative duty to explore further methods of accommodation." Humphrey v. Mem'l Hosps. Ass'n, 239 F.3d 1128, 1137 (9th Cir. 2001). It is for the jury to examine conflicting evidence and determine whether Defendants and Plaintiff each fulfilled their respective obligations. Whether Defendants offered sufficient methods of reasonable accommodation that were rejected by Plaintiff simply because he "truly sought" only a single unreasonable accommodation, and was merely using his ADA suit as a disguise for reinstatement to his previous position, requires factual determinations of subjective intent and credibility that lie beyond the scope of the Court's authority on a summary judgment motion. The final argument for reconsideration and reversal by Defendants relates to new evidence that the only accommodation allegedly sought by Plaintiff, reinstatement to the Warrants Officer position, would have constituted an undue hardship for Defendants. Defendants do not make undue hardship arguments with respect to other possible accommodations. The Court has already held that reinstatement to the Warrants Officer position from which Plaintiff was demoted does not constitute a reasonable accommodation, see 29 C.F.R. Pt. 1630, App. § 1630.2(o); thus, it is unnecessary to determine whether such action would also create undue hardship.

The Court did not err in its legal determinations concerning the interactive process and the sufficiency of Defendants' evidence as a matter of law. IT IS ORDERED denying Defendants' Motion for Reconsideration (Doc. 46). -3Case 2:03-cv-02285-SRB Document 54 Filed 09/01/2005 Page 3 of 4

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DATED this 1st day of September, 2005.

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