-CMK McCoy v. Army Corps of Engineers, et al., No. 2:2009cv01973 - Document 104 (E.D. Cal. 2011)

Court Description: ORDER denying 91 Motion for Reconsideration signed by Judge Lawrence K. Karlton on 12/21/11. (Matson, R)

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-CMK McCoy v. Army Corps of Engineers, et al. Doc. 104 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 FOR THE EASTERN DISTRICT OF CALIFORNIA 7 ROSLYN McCOY, 8 NO. CIV. S-09-1973 LKK/CMK 9 Plaintiff, 10 11 12 13 v. DEPARTMENT OF THE ARMY -ARMY CORPS OF ENGINEERS and HONORABLE JOHN McHUGH, SECRETARY OF THE ARMY, collectively, O R D E R 14 Defendants. / 15 16 Plaintiff claims that she was terminated from her clerical 17 position with the Army Corps of Engineers because of her dyslexia, 18 in violation of the Rehabilitation Act of 1973. The complaint 19 alleges both retaliation and disparate treatment theories. Pending 20 before the court is plaintiff’s motion for reconsideration of the 21 portion 22 compensatory damages are not available for plaintiff’s retaliation 23 claim under the Rehabilitation Act. For the reasons stated herein, 24 plaintiff’s motion is DENIED. 25 //// 26 //// of this court’s May 31, 2011 order holding that 1 Dockets.Justia.com I. Background1 1 2 Plaintiff worked as an administrative support assistant in the 3 Equal Employment Opportunity office at the Army Corps of Engineers 4 from May, 2005, until September, 2006. Plaintiff self-designated 5 as having a learning disability when she applied for the job. In 6 September 2006, plaintiff was given a termination notice that 7 stated: 8 12 You are being terminated because of your unsatisfactory conduct including your making a false statement to the Chief of Staff during a meeting on 23 August 2006 wherein you stated “you were not required to proofread your work”; on 24 August 2006, you made a false statement to me when you said that it was your idea to meet with Diversity Jubilee volunteers prior to the event; and your inappropriate comment to a member of the Safety Office on 7 April 2006. 13 Notice of Termination, Ex. E to Brown Decl. in Supp. of Mot. for 14 Summ. J., ECF No. 67-8. Plaintiff asserts that the reasons given 15 for 16 terminated because of her disability, and in retaliation for 17 complaining about disability discrimination. 9 10 11 her termination are pretext, and that she was actually 18 In an order issued on May 31, 2011 (“May 31 order”), this 19 court denied in part and granted in part a motion for summary 20 judgment 21 established 22 defendant’s stated reasons for firing plaintiff were pretext. The 23 court granted summary judgment to defendants on this issue of 24 whether plaintiff could recover compensatory damages for her by defendant. a genuine The issue court of held that plaintiff material fact as to had whether 25 1 26 The factual assertions in this case are more fully detailed in the court’s May 31, 2011 order on summary judgment, ECF No. 78. 2 1 retaliation claim. The court noted: “On this issue, the court is 2 confronted with an unambiguous statute that says one thing, and two 3 Ninth Circuit opinions which, put together, unambiguously hold the 4 opposite.” May 31, 2011 Order, ECF No. 78. The court ultimately 5 concluded 6 retaliation claims under the Rehabilitation Act pursuant to two 7 Ninth Circuit opinions holding that the remedies for violations of 8 the Americans with Disabilities Act (“ADA”) and the Rehabilitation 9 Act are co-extensive with each other, Ferguson v. City of Phoenix, 10 157 F.3d 668 (9th Cir. 1998)(cert. denied at 529 U.S. 1159), and 11 that compensatory damages are not available for retaliation claims 12 under the ADA, Alvarado v. Cajun Operating Co., 588 F.3d 1261, 1268 13 (9th Cir. 2009). 14 15 that compensatory damages are not available for Plaintiff now seeks reconsideration of the court’s holding. II. Standard for a Motion for Reconsideration under Fed. R. Civ. P. 60(b)(6). 16 17 Federal Rule of Civil Procedure 60(b) provides: “On motion and 18 just terms, the court may relieve a party . . . from a final 19 judgment, order, or proceeding” in the case of mistake or excusable 20 neglect, newly discovered evidence, fraud, a judgment that is void, 21 satisfaction of the judgment, or for “(6) any other reason that 22 justifies relief.” Fed. R. Civ. P. 60(b). This catch-all provision 23 of Rule 60(b)(6) “vests power in courts adequate to enable them to 24 vacate judgments whenever such action is appropriate to accomplish 25 justice.” 26 Rule 60(b) “attempts to strike a proper balance between the Klapprott v. United States, 335 U.S. 601, 615 (1949). 3 1 conflicting principles that litigation must be brought to an end 2 and that justice should be done.” Delay v. Gordon, 475 F.3d 1039, 3 1044 (9th Cir, 2007)(quoting 11 Wright & Miller Federal Practice 4 & Procedure § 2851 (2d ed. 1995). 5 relief 6 “extraordinary 7 Acquisition Corp., 486 U.S. 847 (1988)(quoting Ackermann v. United 8 States, 340 U.S. 193, 199 (1950)). 9 under In Rule 60(b)(6), Nonetheless, in order to seek the circumstances.” addition, Local Rule movant Liljeberg 230(j) must v. applies demonstrate Health to Services motions for 10 reconsideration filed in the Eastern District. That rule requires 11 the movant to brief the court on, inter alia, “what new or 12 different facts or circumstances were not shown upon such prior 13 motion, or what other grounds exist for the motion; and why the 14 facts or circumstances were not shown at the time of the prior 15 motion.” III. Analysis 16 17 Plaintiff asserts that reconsideration of this court’s holding 18 that compensatory damages are not available for a retaliation claim 19 under 20 unpublished opinion issued in May 2010. That opinion, Herrera v. 21 Giampietro, 2010 WL 1904827 (E.D.Cal. 2010), distinguished between 22 ADA retaliation claims against private entities, and ADA claims 23 directed at public entities. Noting the same statutory language 24 that this court analyzed in its May 31 order, the Herrera court 25 held that the plaintiff may be entitled to monetary damages for her 26 retaliation claim against a school district. the Rehabilitation Act is 4 warranted in light of an 1 In her motion for reconsideration, plaintiff has not explained 2 what new facts or circumstances justify reconsideration, nor has 3 she explained why these facts and circumstances were not shown at 4 the time of the prior motion. Instead, plaintiff asserts that she 5 did not comply with these requirements because the court, in its 6 Tentative Pretrial Conference Order, ECF No. 90, granted plaintiff 7 permission to bring a motion to reconsider. This tentative order 8 does not relieve plaintiff of the burden of showing what new facts 9 and circumstances justify reconsideration under Fed. R. Civ. P. 10 60(b)(6). 11 The court was aware, at the time it issued its May 31 order, 12 that two different legal 13 possible. The Rehabilitation Act itself, 29 U.S.C. § 791, contains 14 no anti-retaliation provision, but expressly incorporates the ADA’s 15 anti-retaliation 16 whether this section has been violated in a complaint alleging non- 17 affirmative action employment discrimination under this section 18 shall be the standards applied under title I of the [ADA](42 U.S.C. 19 12111 et seq.) and the provisions of sections 501 through 504, and 20 510, of [ADA] (42 U.S.C. 12201-12204 and 12210), as such sections 21 relate to employment.” 29 USCS § 791. The ADA’s anti-retaliation 22 provision is found in 42 U.S.C. § 12203. provision: conclusions “The on standards this used question to were determine 23 Remedies for violations of the ADA and the Rehabilitation Act 24 are delineated in the Civil Rights Act of 1991, 42 U.S.C. § 25 1981a(2). That statute provides for compensatory damages in some 26 cases of intentional discrimination, including for violations of 5 1 section 501 of the Rehabilitation Act, 29 U.S.C. § 791. Section 2 1981a(2) reads, in full: 3 4 5 6 7 8 9 10 11 12 13 14 Disability. In an action brought by a complaining party under the powers, remedies, and procedures set forth in section 706 or 717 of the Civil Rights Act of 1964 [42 USCS § 2000e-5 or 2000e-16] (as provided in section 107(a) of the Americans with Disabilities Act of 1990 (42 U.S.C. 12117(a)), and section 505(a)(1) of the Rehabilitation Act of 1973 (29 U.S.C. 794a(a)(1)), respectively) against a respondent who engaged in unlawful intentional discrimination (not an employment practice that is unlawful because of its disparate impact) under section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791) and the regulations implementing section 501 [29 USCS § 791], or who violated the requirements of section 501 of the Act [29 USCS § 791] or the regulations implementing section 501 [29 USCS § 791] concerning the provision of a reasonable accommodation, or section 102 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12112), or committed a violation of section 102(b)(5) of the Act [42 USCS § 12112(b)(5)], against an individual, the complaining party may recover compensatory and punitive damages as allowed in subsection (b), in addition to any relief authorized by section 706(g) of the Civil Rights Act of 1964 [42 USCS § 2000e-5(g)], from the respondent. 15 16 Plaintiff’s disparate treatment and retaliation claims in this 17 case are brought under 29 U.S.C. § 791. The Civil Rights Act of 18 1991 does not provide for compensatory damages for violations of 19 the ADA’s anti-retaliation provision, 42 U.S.C. § 12203. One 20 reading of this statutory web is that, since 42 U.S.C. § 1981a 21 expressly allows for compensatory damages for all successful 22 Rehabilitation Act claims, plaintiff here may recover compensatory 23 damages. Another reading is that compensatory damages are not 24 available 25 Rehabilitation Act’s prohibition on retaliation is incorporated 26 from 42 U.S.C. § 12203, for which compensatory damages are not for plaintiff’s retaliation 6 claim, since the 1 available. 2 This court is bound by Ninth Circuit holdings embodying the 3 latter interpretation. The Ninth Circuit has held that “by statute, 4 the remedies for violations of the ADA and the Rehabilitation Act 5 are co-extensive with each other, 42 U.S.C. § 12133; 29 U.S.C. § 6 794a(a)(2), and are linked to Title VI of the Civil Rights Act of 7 1964, 42 U.S.C. § 2000d, et seq.” Ferguson v. City of Phoenix, 157 8 F.3d 668, 673 (9th Cir. 1998) cert. denied at 526 U.S. 1159 (1999). 9 The Ninth Circuit has also held that compensatory damages are not 10 available for ADA retaliation claims: “the text of section 1981a 11 is not ambiguous. It explicitly delineates the specific statutes 12 under the ADA for which punitive and compensatory damages are 13 available. . . [the statute] limits its remedial reach to ADA 14 discrimination claims, and does not incorporate ADA retaliation 15 claims.” Alvarado v. Cajun Operating Co., 588 F.3d 1261, 1268 (9th 16 Cir. 2009). The Alvarado court held ultimately that “punitive and 17 compensatory damages are not available for ADA retaliation claims,” 18 and that retaliation claims are redressable only by equitable 19 relief. Id. at 1269. 20 Bound by these holdings, this court concludes that in this 21 circuit, compensatory damages are not available for retaliation 22 under the Rehabilitation Act. The court cannot accept plaintiff’s 23 position without departing from either Ferguson or Alvarado, which 24 the court is not free to do. 25 26 Accordingly, plaintiff’s motion for reconsideration, ECF No. 91, is DENIED. 7 1 IT IS SO ORDERED. 2 DATED: December 21, 2011. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 8

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