United States District Court, W.D. Arkansas, Fayetteville Division
ELIZABETH M. ORR PLAINTIFF
CITY OF ROGERS DEFENDANT
OPINION & ORDER
TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE.
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
Court entered a Memorandum Opinion and Order (Doc. 46)
dismissing all but one of Orr's discrimination claims
against the City. 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.
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.
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.
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).
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.
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.
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
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
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
Id. (internal quotations and citations omitted).
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 ...