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Orr v. City of Rogers

United States District Court, W.D. Arkansas, Fayetteville Division

February 27, 2017


          OPINION & ORDER


         Currently before the Court is a Motion to Reconsider (Doc. 48) filed by Defendant City of Rogers (the "City") on February 9, 2017. Plaintiff Elizabeth Orr filed a Response (Doc. 55) on February 22, 2017, and the City replied a day later (Doc. 58). For the reasons detailed herein, the City's Motion is DENIED.

         I. DISCUSSION

         The Court entered a Memorandum Opinion and Order (Doc. 46) dismissing all but one of Orr's discrimination claims against the City.[1] The one remaining claim is a failure to accommodate claim brought pursuant to the Americans with Disabilities Act, the Rehabilitation Act, and the Arkansas Civil Rights Act. The City asks the Court to reconsider its denial of summary judgment as to this surviving claim. The City believes that the Court erred in denying it summary judgment for two reasons. First, it contends that Orr did not properly raise a failure to accommodate claim, both because she did not assert such a claim in her EEOC charge, and because her Amended Complaint (Doc. 13) fails to state such a claim. Instead, the City suggests that Orr raised her failure to accommodate claim for the first time in her Response to the City's Motion for Summary Judgment (Doc. 36). Second, it believes the Court denied summary judgment solely based on Orr's self-serving affidavit, which conflicts with her earlier testimony. The Court disagrees on both points.

         As an initial matter, the Court finds that the City has waived its first argument-that Orr did not properly raise a failure to accommodate claim. The City had at least three clear opportunities to raise this argument prior to the Court's adjudication of its summary judgment motion, but failed to do so. If the City thought that Orr improperly raised her failure to accommodate claim for the first time in her Response Brief, it could have certainly said so in its Reply Brief (Doc. 39), but did not. Second, the City correctly points out that the Court's attorney emailed the parties' attorneys to ask Orr to clarify the source of her failure to accommodate claim in her Amended Complaint. (Doc. 48, pp. 4-5). What the City failed to add, however, is that Orr's counsel responded by identifying specific paragraphs in her Amended Complaint that comprised her failure to accommodate claim. Further, Orr's counsel cited to authority to support the proposition that her Amended Complaint was sufficient to assert the claim. If the City felt otherwise, it certainly had the opportunity to voice its disagreement at that point. Third, the Court held a hearing on the City's Motion for Summary Judgment on January 24, 2017. During the hearing, the Court received extensive oral argument and questioned both parties at length. It is even fair to say that the focus of the Court's questioning was on Orr's failure to accommodate claim. Not once did the City suggest that Orr's EEOC charge or her Amended Complaint failed to raise such a claim; it argued only that the claim could not survive summary judgment on its merits.

         "A litigant that has previously been given a full and fair opportunity to argue an issue is not permitted to later make an argument that could have been, and should have been, raised earlier." Mayo v. UBS Real Estate Sec, Inc., 2012 WL 2848002, at *3 (W.D. Mo. Jan. 13, 2012) (citing Martin v. Am. Airlines, Inc., 390 F.3d 601, 609 n.4 (8th Cir. 2004), and Bam v. Denney, 2010 WL 3526270, at *8 n.3 (W.D. Mo. Sept. 3, 2010)). The City had multiple opportunities to raise the argument it now presents, but did not do so until it suffered an adverse ruling. It therefore waived the argument.

         Assuming, arguendo, that the City did not waive its argument, the Court would still disagree with its position on the matter. With respect to the sufficiency of Orr's EEOC charge, the Court is mindful that it "should not use Title Vll's administrative procedures as a trap for unwary pro se civil-rights plaintiffs." Shannon v. Ford Motor Co., 72 F.3d 678, 685 (8th Cir. 1996). Accordingly, "when a plaintiff files an EEOC charge pro se, the charge must be read liberally." Edwards v. WINCO Mfg. Co., 5 F.Supp.2d 743, 749 (E.D. Mo. 1998).

         Orr's EEOC charge mentions the denial of remedial training as a basis for her discrimination claim on three occasions. (Doc. 1-1). She wrote: (i) "After returning to work from an injury, I was denied remedial training around October 2013."; (ii) "I was not given a reason for being denied remedial training."; and (iii) "I believe I was denied remedial training because I was regarded as being disabled" Id. While it is true that Orr's third reference to remedial training appears to pertain to a disparate treatment type claim, that observation is insufficient to extinguish her ability to later bring a failure to accommodate claim. "Courts recognize claims as exhausted when they have been actually filed before the EEOC or when they are 'like or reasonably related to the allegations of the administrative charge.'" Edwards, 5 F.Supp.2d at 749 (quoting Anderson v. Block, 807 F.2d 145, 148 (8th Cir. 1986)) (alteration omitted). The "reasonably related" standard means that the claims in a plaintiffs complaint "may be as broad as the scope of the EEOC investigation which could reasonably be expected to grow out of the charge of. discrimination." Cobb v. Stringer, 850 F.2d 356, 359 (8th Cir. 1988) (quotation omitted). This standard does not allow a court to "invent[], ex nihilo, a claim which simply was not made, " Shannon, 72 F.3d at 685, but this is not what the Court is suggesting. By repeatedly referencing the City's failure to provide her remedial training as a discriminatory act, the Court believes that Orr's EEOC charge, at the least, reasonably relates to her failure to accommodate claim that is based on not receiving remedial training.

         Turning to the sufficiency of Orr's Amended Complaint-an argument that the City has also waived-the Court begins by making the following observation: Orr's Amended Complaint "is not a model of the careful drafter's art." Skinner v. Switzer, 562 U.S. 521, 530 (2011). Too often, this Court receives complaints from plaintiffs that fail to clearly enumerate the legal theories upon which their claims rest, or only enumerate some such theories. The Court would encourage the bar to emphasize the importance of clearly enumerating legal theories in complaints in order to avoid needless confusion and unnecessary litigation.

         That said, the City's argument that Orr's failure to accommodate claim would not survive a Twombly / Iqbal analysis misses the mark. BellAtl. Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009). Those cases stand for the proposition that Rule 8(a)(2)'s notice pleading standard requires plaintiffs to plead facts sufficient to show that their claims have substantive plausibility. Johnson v. City of Shelby, Miss., 135 S.Ct. 346 (2014). They do not provide that plaintiffs must precisely articulate the legal theories supporting the claims they assert, id. at 346, though (as stated above) the Court certainly prefers that plaintiffs do so. Orr's Amended Complaint alleges that her supervisor denied her "the ability to receive additional training needed to properly operate the Dispatch Center while allowing other Dispatch personnel to receive such training." (Doc. 13, ¶ 32). And, it alleges that her supervisor "promised to provide Orr with 'remedial' training regarding what [her supervisor] characterized as deficiencies that Orr possessed as a Dispatcher, but [her supervisor] never provided any such training to Orr." Id. at ¶ 44. While these factual allegations could serve as a basis for a disparate treatment claim, a disabled person's request for training and subsequent denial thereof can also serve as the basis for a failure to accommodate claim. See Doc. 46, pp. 30-33. Accordingly, Orr's Amended Complaint states facts sufficient to survive a Twombly / Iqbal analysis.[2]

         The Court proceeds next to the City's position that Orr's affidavit is self-serving and conflicts with her earlier testimony. First, the Court again finds that the City waived this argument by not raising it in its Reply Brief or at oral argument. But even had it not, the Court would find it to be unmeritorious. The City's contention goes to the question of whether the issues of fact surrounding Orr's failure to accommodate claim are genuine issues of material fact, such that "a reasonable jury could return a verdict" for Orr. Herring v. Canada Life Assur. Co., 207 F.3d 1026, 1030 (8th Cir. 2000) (quoting Anderson v. Liberty Lobby Inc., 411 U.S. 242, 248 (1986) and discussing "sham" issues of fact). The Eighth Circuit has, indeed, held that a plaintiff may not create a genuine issue of material fact by filing an affidavit that is inconsistent with her earlier deposition testimony. Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361 (8th Cir. 1983). Thus, where a plaintiff testified during a deposition that he instructed a salesman to delay depositing a check, but then later submitted an affidavit swearing that he instructed the salesman to not deposit and instead return the check, summary judgment was appropriate. Id. at 1363- 66. Similarly, in Wilson v. Westinghouse Bee. Corp., 838 F.2d 286 (8th Cir. 1988), a plaintiff testified that he was told he was being terminated, but then later filed an affidavit declaring that he was told his position was being eliminated, but that his employment would continue in another capacity, id. at 288. The plaintiffs later statement "directly contradicted" his earlier testimony, and pertained to the decisive question of whether he could benefit from the equitable tolling of a limitations period. Id. at 289. The Wilson Court elaborated:

While district courts must exercise extreme care not to take genuine issues of fact away from juries, a party should not be allowed to create issues of credibility by contradicting his own earlier testimony. Ambiguities and even conflicts in a deponent's testimony are generally matters for the jury to sort out, but a district court may grant summary judgment where a party's sudden and unexplained revision of testimony creates an issue of fact where none existed before. Otherwise, any party could head off a summary judgment motion by supplanting previous depositions ad hoc with a new affidavit, and no case would ever be appropriate for summary judgment.

Id. (internal quotations and citations omitted).

         The Court does not believe that the testimony and affidavit in question constitute the type of direct contradiction or "sudden and unexplained revision" contemplated by CamfieldTires, Wilson, and similar cases. Instead, it falls on the side ...

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