United States District Court, D. Kansas
FREDERICK E. PARAHAM, Plaintiff,
ATRIUMS MANAGEMENT COMPANY, INC. and TUTERA SENIOR LIVING AND HEALTH CARE, LLC, Defendants.
MEMORANDUM & ORDER
MURGUIA, United States District Judge
matter comes before the court upon defendants Atriums
Management Company, Inc, and Tutera Senior Living and Health
Care, LLC's Motion for Correction of Order (Doc 49).
Rule of Civil Procedure 60(b) allows the court to relieve a
party of a final order for various reasons including
“any reason that justifies relief.” Relief under
Rule 60(b) is “extraordinary and may only be granted in
exceptional circumstances.” Allender v. Raytheon
Aircraft Co., 439 F.3d 1236, 1242 (10th Cir. 2006)
(quoting Cashner v. Freedom Stores, Inc., 98 F.3d
572, 756 (10th Cir. 1996)). A 60(b) motion is not an
opportunity for a party to reargue the facts or the law or
“to challenge the correctness of the district
court's judgment by arguing that the district court
misapplied the law or misunderstood their position.”
Van Skiver v. United States, 952 F.2d 1241, 1244
(10th Cir. 1991). However, the court does have the equitable
power to do justice in a case by correcting an error of law.
February 2, 2018, the court entered a Memorandum and Order
(Doc. 49) denying defendants' Motion for Summary Judgment
(Doc. 37). The court determined that plaintiff established a
prima facie case of disability discrimination and he
submitted issues of material fact sufficient for his (1)
disparate treatment and denial of reasonable accommodation
claim, and (2) retaliation claim to proceed to trial.
relevant to defendants' current motion, when discussing
whether plaintiff had established a prima facie case of
disability discrimination, the court considered
whether-through his briefing and references to the record
evidence-plaintiff had submitted an issue of material fact
that he was disabled according to the ADA. The court
determined that plaintiff submitted an issue of material fact
as to whether he was “regarded as” disabled by
defendants. The court found plaintiff's arguments at
summary judgment insufficient to establish a prima facie case
based on the “actual disability” and
“history of” disability definitions. Because
plaintiff established the other elements necessary for a
prima facie case of discrimination, the court denied summary
judgment-in its entirety.
argue that the court should grant summary judgment in their
favor on plaintiff's reasonable accommodation claim,
because the Americans with Disabilities Act
(“ADA”), as amended by the ADA Amendments Act of
2008 (“ADAAA”), 42 U.S.C. §§
12101-12213, no longer provides a cause of action for
reasonable accommodation claims where the plaintiff's
prima facie case of discrimination is based solely on him or
her being “regarded as” having a disability by
his or her employer.
the amendments at 29 C.F.R. § 1630.2(o)(4) provide that:
[a] covered entity is required, absent undue hardship, to
provide a reasonable accommodation to an otherwise qualified
individual who meets the definition of disability under the
“actual disability” prong (paragraph (g)(1)(i) of
this section), or “record of” prong (paragraph
(g)(1)(ii) of this section), but is not required to
provide a reasonable accommodation to an individual
who meets the definition of disability solely under the
“regarded as” prong (paragraph (g)(1)(iii)
of this section).
(emphasis added). Although defendants did not raise this
argument in their summary judgment briefing, the court agrees
that the ADA as amended does not create a cause of action for
failure to accommodate where a plaintiff is “regarded
as” having a disability but has no “actual
disability” or “record of” disability.
opposition to dismissal of the accommodation claim relies on
the fact that the court denied summary judgment in its
entirety, without reservation or condition. Plaintiff argues
that because summary judgment was not granted on any claim,
he still plans to argue that he is “actually
disabled” or has a “history of” disability
in addition to his “regarded as” theory of
disability at trial.
court's order denying summary judgment did not bar
plaintiff from attempting to establish that he is disabled as
defined by the ADA under any of the three definitions.
Because the court did not do so, the jury will decide this
issue at trial. The court finds this appropriate, especially
considering the Tenth Circuit's instruction that
establishing a prima facie case should not be onerous. (Doc.
49.) The court denied summary judgment because plaintiff
submitted a prima facie case and issues of triable fact. It
is possible that a jury might decide that plaintiff has an
ADA protected disability based on one of the ...