United States District Court, D. Nevada
before the court is defendant Clark County School
District's (“District”) motion for this court
to reconsider its July 21, 2016, order denying that
party's motion for summary judgment. (ECF No. 41);
see also (ECF No. 40). Plaintiff Mark Eval filed a
response (ECF No. 42), and District filed a reply (ECF No.
October 11, 2014, plaintiff filed his complaint asserting
three causes of action. (ECF No. 1). In the face of
defendant's November 5, 2015, motion for summary
judgment, plaintiff abandoned all claims but those alleged
under the Americans with Disability Act for disability
discrimination and an employer's failure to accommodate.
(ECF No. 40).
21, 2016, this court denied District's motion for summary
judgment. (Id.). Although the relevant briefings
“focuse[d] on whether the requested (and approved)
medical leave of absence would have been a reasonable
accommodation, ” this court instead examined if
defendant had “engaged in the interactive process in
good faith.” (Id. at 6-7). As a result, this
court found that a genuine issue of material fact existed
regarding “whether the District had a duty to engage in
the interactive process to determine a reasonable
accommodation for [plaintiff]” and whether it had
actually done so. (Id. at 8-9).
now argues that this court committed “clear error
because Ninth Circuit precedent clearly establishes failure
to engage in the interactive process does not preclude
summary judgment.” (ECF No. 41 at 2).
motion for reconsideration “should not be granted,
absent highly unusual circumstances.” Kona Enters.,
Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir.
2000). Reconsideration is appropriate if the district court
“(1) is presented with newly discovered evidence, (2)
committed clear error or the initial decision was manifestly
unjust, or (3) if there is an intervening change in
controlling law.” Dixon v. Wallowa County, 336
F.3d 1013, 1022 (9th Cir. 2003); see also Fed. R.
Civ. P. 60(b).
Rule of Civil Procedure 59(e) “permits a district court
to reconsider and amend a previous order”; however,
“the rule offers an extraordinary remedy, to be used
sparingly in the interests of finality and conservation of
judicial resources.” Carroll v. Nakatani, 342
F.3d 934, 945 (9th Cir. 2003) (internal quotations omitted).
A motion for reconsideration “may not be used to raise
arguments . . . for the first time when they could reasonably
have been raised earlier in litigation.” Kona
Enters, 229 F.3d at 890.
initial matter, no sanctions will be imposed on defendant.
District has complied with Local Rule 59-1 and offers its
motion to discuss controlling law and not for any
inappropriate purpose. (ECF No. 41).
defendant's citation to Dark v. Curry County,
451 F.3d 1078, 1089 (2006), is unpersuasive. (ECF No. 41).
Language subsequent to defendant's offered excerpt of
that case reaffirms this court's reasoning:
“Because the County did not engage in [an interactive]
process, summary judgment is available only if a reasonable
finder of fact must conclude that there would in any
event have been no reasonable accommodation available.”
Dark, 451 F.3d at 1088 (emphasis in original)
(quoting Morton v. United Parcel Serv., Inc., 272
F.3d 1249, 1252 (9th Cir. 2001)) (internal quotation marks
omitted). Because there was an issue of genuine fact
regarding whether defendant had the duty to consider, or in
fact considered, a reasonable accommodation for plaintiff,
this argument cannot be the basis for defendant's
requested relief. (ECF No. 40).
defendant asserts that “[l]iability for failure to
provide reasonable accommodations ensues only where the
employer bears responsibility for the breakdown in the
interactive process.” (ECF No. 41) (quoting
Zivkovic v. S. California Edison Co., 302 F.3d 1080,
1089 (9th Cir. 2002)) (internal quotation marks omitted).
However, a process that has “broken down” must
have first existed; this court found that there was a genuine
issue of material fact whether any interactive process had
even taken place. (ECF No. 40).
also argues that the Ninth Circuit held in Barnett v.
U.S. Air, Inc., 228 F.3d 1105, 1116 (9th Cir. 2000),
vacated on other grounds sub nom, U.S. Airways,
Inc. v. Barnett, 535 U.S. 391 (2002), that
“employers, who fail to engage in the interactive
process in good faith, face liability for the remedies
imposed by the statute if a reasonable accommodation would
have been possible.” (ECF No. 41). Defendant contests
that this language only permits liability after an analysis
of the reasonable accommodations, if any, available in a
case. See (id.).
next sentence in that case reads: “[the Ninth Circuit]
further hold[s] that an employer cannot prevail at the
summary judgment stage if there is a genuine dispute as to
whether the employer engaged in good faith in the interactive
process.” Barnett, 228 F.3d at 1116. This
court made that determination in the challenged order. (ECF
No. 40) (“The court thus finds that there are genuine
issues of material fact regarding both whether the District
had knowledge that Eval had workplace ...