Milligan v. Rambosk

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

MATTHEW MILLIGAN,

Plaintiff,

v. Case No: 2:20-cv-403-FtM-29MRM

KEVIN RAMBOSK, in his

official capacity as Sheriff

of Collier County, Florida,

Defendant.

OPINION AND ORDER

This matter comes before the Court on review of defendant’s

Motion For Reconsideration (Doc. #46), filed on March 3, 2022.

Plaintiff filed a Response in Opposition (Doc. #57) on March 21,

2022.

I.

Plaintiff Matthew Milligan (Plaintiff) has Ataxic Cerebral

Palsy (ACP) and Paroxysmal Kinesigenic Dyskinesia (PKD).

Plaintiff alleges that he was employed by Collier County Sheriff’s

Office (CCSO) as a road patrol deputy until May 9, 2019, when

defendant terminated his appointment as a deputy because of his

ACP and PKD. (Doc. #1, ¶¶ 8-9, 40-41, 53, 56, 64-65.) On June 4,

2020, Plaintiff filed a three-count Complaint against Kevin

Rambosk (Defendant or the Sheriff), in his official capacity as

Sheriff of Collier County, Florida, alleging the Sheriff

unlawfully discriminated against him in violation of the American

Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. (Count I) and

the Florida Civil Rights Act of 1992 (FCRA) (Count III), and failed

to reasonably accommodate his disability pursuant to the ADA (Count

II). (Id., pp. 10-16.)

On October 26, 2021, Defendant filed a motion for summary

judgment, in which the Sheriff argued that Plaintiff could not

establish a prima facie case of disability discrimination pursuant

to the ADA or FCRA, or that he was denied a reasonable

accommodation in violation of the ADA. (Doc. #23, p. 2.)

Specifically, Defendant argued among other things that Plaintiff

could not establish that he was disabled under the ADA or FCRA.

(Doc. #23, p. 12.) Defendant also argued that Plaintiff never made

a specific request for a reasonable accommodation, and even if he

did – any request for an accommodation was not reasonable. (Id.,

pp. 21-25.) Defendant therefore asserted that he was entitled to

summary judgment on all claims. (Doc. #23, p. 3.)

On February 24, 2022, the Court issued an Opinion and Order

(Doc. #41) denying Defendant’s Motion for Summary Judgment. With

respect to whether Plaintiff’s ACP and PKD qualified as a

“disability,” the Court found that a reasonable jury could conclude

that Plaintiff’s ACP and PKD were disabilities which substantially

limits a major life activity as compared to the general population

(i.e., was an actual disability), and that Defendant regarded

Plaintiff as being disabled when the Sheriff terminated

Plaintiff’s law enforcement position in the belief that

Plaintiff’s PKD muscle spasms or ACP made him a direct threat to

safety. (Id., pp. 15-17.) The Court therefore concluded that

Plaintiff had established he was “disabled” under the ADA and FCRA

for summary judgment purposes. (Id.) The Court also considered

Defendant’s argument that Plaintiff did not make a specific request

for a reasonable accommodation and no reasonable accommodation

existed. (Id., pp. 27-30.) The Court found that while Plaintiff

did not identify a specific accommodation, Plaintiff did request

“any reasonable accommodation,” which a reasonable fact-finder

could find was sufficient to show that the Sheriff knew of

Plaintiff’s desire for an accommodation. (Id., p. 28.) Finally,

the Court concluded that there was no record evidence showing that

the Sheriff responded in an open, interactive process to

Plaintiff’s accommodation request, and that a jury could find that

the Sheriff failed to provide a reasonable accommodation. (Id., p.

30.) The Court denied summary judgment as to all of Plaintiff’s

claims. (Id., p. 31.)

Defendant now requests that the Court reconsider its Opinion

and Order denying summary judgment to correct clear error and/or

to prevent manifest injustice on two specific grounds: (1) the

Court did not apprehend (or disregarded) CCSO’s position that it

reasonably accommodated Plaintiff, and (2) and that Plaintiff’s

PKD is not an actual disability, only a “regarded as” disability.

(Doc. #46, pp. 1-2.)

For the reasons set forth below, the motion to reconsider is

denied.

II.

A non-final order may be revised at any time before the entry

of a final judgment. Fed. R. Civ. P. 54(b). The decision to grant

a motion for reconsideration is within the sound discretion of the

trial court and may be granted to correct an abuse of discretion.

Region 8 Forest Serv. Timber Purchasers Council v. Alcock, 993

F.2d 800, 806 (11th Cir. 1993). "The courts have delineated three

major grounds justifying reconsideration of such a decision: (1)

an intervening change in controlling law; (2) the availability of

new evidence; (3) the need to correct clear error or prevent

manifest injustice." Sussman v. Salem, Saxon & Nielsen, P.A., 153

F.R.D. 689, 694 (M.D. Fla. 1994).

"A motion for reconsideration should raise new issues, not

merely readdress issues litigated previously." PaineWebber Income

Props. Three Ltd. P'ship v. Mobil Oil Corp., 902 F. Supp. 1514,

1521 (M.D. Fla. 1995). The motion must set forth facts or law of

a strongly convincing nature to demonstrate to the court the reason

to reverse its prior decision. Taylor Woodrow Constr. Corp. v.

Sarasota/Manatee Airport Auth., 814 F. Supp. 1072, 1073 (M.D. Fla.

1993); PaineWebber, 902 F. Supp. at 1521. "When issues have been

carefully considered and decisions rendered, the only reason which

should commend reconsideration of that decision is a change in the

factual or legal underpinning upon which the decision was based.

Taylor Woodrow, 814 F. Supp. at 1072-73.

"A motion for reconsideration does not provide an opportunity

to simply reargue - or argue for the first time - an issue the

Court has already determined. Court opinions are not intended as

mere first drafts, subject to revision and reconsideration at a

litigant's pleasure." Grey Oaks Cty. Club, Inc. v. Zurich Am. Ins.

Co., No. 2:18-cv-639-FtM-99NPM, 2019 U.S. Dist. LEXIS 161559, at

*5 (M.D. Fla. Sep. 23, 2019) (citing Quaker Alloy Casting Co. v.

Gulfco Indus., Inc., 123 F.R.D. 282, 288 (N.D. Ill. 1988)

(quotations omitted)). Reconsideration of a court's order "is an

extraordinary remedy and a power to be 'used sparingly,'"

Santamaria v. Carrington Mortg. Servs., LLC, 2019 U.S. Dist. LEXIS

129682, 2019 WL 3537150, *2 (M.D. Fla. July 10, 2019) (citation

omitted), with the burden "upon the movant to establish the

extraordinary circumstances supporting reconsideration." Mannings

v. Sch. Bd. of Hillsborough Cnty., Fla., 149 F.R.D. 235, 235 (M.D.

Fla. 1993). Unless the movant's arguments fall into the limited

categories outlined above, a motion to reconsider must be denied.

III.

A. Reasonable Accommodation

In his Motion For Reconsideration, Defendant argues that the

Court committed clear error that warrants reconsideration because

it did not apprehend (or disregarded) CCSO’s position that it

reasonably accommodated Plaintiff by reassigning him to a non-

sworn position, and instead, incorrectly mischaracterized

Plaintiff’s reassignment as a termination preceded by CCSO’s

failure to engage in the interactive process. (Doc. #46 pp. 1-2.)

Defendant maintains that CCSO reasonably accommodated Plaintiff by

reassigning him to a different position, and cites to various cases

that purportedly recognize job reassignment as a “reasonable

accommodation.” (Id., pp. 4-6.) Defendant therefore concludes that

the Court’s findings warrant reconsideration. (Id., p. 2.)

Plaintiff responds that the Court’s finding that the Sheriff

terminated Plaintiff from his employment as a certified law

enforcement officer is supported by record citations and is not

grounds for reconsideration because it amounts to “simply a point

of disagreement,” not manifest error. (Doc. #57, p. 3.) The Court

agrees. In the Opinion and Order, the Court considered record

evidence in reaching this conclusion, including CCSO Human

Resources Director Darlyn Estes’s testimony, which states:

Q. Well, you believe that because of this

impairment that [Plaintiff] was not fit for

duty as a law enforcement officer, and you

terminated that appointment; is it a fair

statement?

A. Yes.

(Doc. #23, p. 22.) While Defendant may argue that it did not

terminate Plaintiff’s employment as a law enforcement officer

(i.e., road patrol deputy), a reasonable jury could find otherwise.

Mere disagreement with the Court's conclusions is not enough to

warrant reconsideration. See Linet Inc. v. Village of Wellington,

Fla., 408 F.3d 757, 763 (11th Cir. 2005) (affirming denial of

reconsideration where plaintiff merely "disagreed with the

district court's treatment of certain facts and its legal

conclusions"). Nothing in Defendant’s motion alters the Court’s

conclusion in this regard, let alone evinces clear error.

As to Defendant’s argument that Court did not apprehend or

disregarded CCSO’s position that it reasonably accommodated

Plaintiff by reassigning him to a non-sworn position, it is a new

argument that was not raised in Defendant’s motion for summary

judgment. See (Doc. #23, pp. 21-25; Doc. #41, pp. 25-30.) On

summary judgment, the Sheriff argued that Plaintiff did not make

a direct and specific request for an accommodation, and that

Plaintiff’s argument — that the Sheriff failed to engage in the

interactive process – had no merit. (Doc. #23, pp. 22-24.) In sum,

Defendant argued that CCSO could not be liable because he

considered Plaintiff’s accommodation request and concluded no

reasonable accommodation existed.1 (Id., p. 24.) Motions for

reconsideration "cannot be used to . . . raise argument or present

evidence that could have been raised prior to the entry of

judgment. This prohibition includes new arguments that were

previously available, but not pressed." Wilchombe v. TeeVee Toons,

Inc., 555 F.3d 949, 957 (11th Cir. 2009); see also CC-Aventura,

Inc. v. Weitz Co., LLC, CASE NO. 06-21598-CIV-HUCK/O'SULLIVAN,

2009 WL 10668319, at *2 n.1 (S.D. Fla. Mar. 17, 2009) (declining

to address new argument in reconsideration motion because it was

"available to, but not raised by" the party seeking reconsideration

prior to judgment).

Because Defendant fails to explain why the Court’s

conclusions as to a reasonable accommodation amounts to a "clear

error or manifest injustice," and instead recycles arguments

already made before the Court and raises a new argument that should

have been raised earlier, the Court declines to disturb its prior

Opinion and Order denying Defendant’s motion for summary judgment.

1 In his Reply, in support of summary judgment, Defendant

briefly discussed Plaintiff’s “reassignment” and whether that

constituted a reasonable accommodation. (Doc. #40, p. 10.) A

party, however, cannot raise new arguments in support of summary

judgment for the first time in a reply brief. WBY, Inc. v. DeKalb

Cnty., 695 F. App'x 486, 491-92 (11th Cir. 2017) (citing Herring

v. Secretary, Dep't of Corr., 397 F.3d 1338, 1342 (11th Cir.

2005)).

B. PKD As An “Actual Disability”

Next, the Sheriff argues that the Court’s finding, that

Plaintiff’s PKD constitutes an “actual disability,” cannot be

reconciled with the parties’ agreement that Plaintiff’s “PKD does

not substantially impede Plaintiff’s ability to perform any life

function,” and therefore constitutes manifest error of the law.

(Doc. #46, pp. 2, 7; Doc. #41, p. 4.)

Although the parties may have agreed that the PKD did not

impede any life function, they patently disagreed whether, as a

matter of law, Plaintiff’s ACP and PKD constituted a “disability”

under the ADA and FCRA. The record on summary judgment

demonstrates Plaintiff argued that his ACP and PKD substantially

limited one or more of his major life activities, namely that “both

ACP and PKD ‘are neurological and substantially limit brain

function,’” whereas the Sheriff (who cited to pre-ADAAA cases)2

argued that no record evidence showed Plaintiff is substantially

limited in a major life activity because “Plaintiff has

unequivocally maintained that his medical conditions do not

substantially impact any major life function.” (Doc. #23, p. 13;

2 On summary judgment, the Court noted that “[a]ny pre-

amendment ADA case thus applies a defunct standard for defining

disability under § 12102, so a court must always assess whether

the ADAAA undercuts the case's reasoning before relying on it.”

See (Doc. #41, p. 14 n.2, citing Felix v. Key Largo Mgmt. Corp.,

No. 21-10381, 2021 WL 5037570, at *2 (11th Cir. Oct. 29, 2021)).

Doc. #32, p. 15; Doc. #41, pp. 11-12.) In Reply, the Sheriff

asserted that Plaintiff’s PKD was not neurological and nor did it

limit brain function. The Sheriff argued he was entitled to

summary judgment because Plaintiff could not establish that he had

a “disability.” (Doc. #23, pp. 12-15; Doc. #41, p. 11.)

Upon careful consideration of post-ADAAA law, the parties’

arguments, and record evidence, the Court reasoned that

Not every impairment, however, will constitute a

disability under the ADA. 29 C.F.R. § 1630.2(j). The

ADAAA provides that the term "substantially limits" "is

not meant to be a demanding standard," but rather "shall

be construed broadly in favor of expansive coverage." 29

C.F.R. § 1630.2(j)(1)(i). The term “substantially

limits” is “interpreted and applied to require a degree

of functional limitation that is lower than the standard

for ‘substantially limits’ applied prior to the ADAAA.”

29 C.F.R. § 1630.2(j)(1)(iv). “An impairment need not

prevent, or significantly or severely restrict, the

individual from performing a major life activity in

order to be considered substantially limiting.” §

1630.2(j)(1)(ii). Rather, Plaintiff must be

substantially limited in a major life activity "as

compared to most people in the general population."

Munoz v. Selig Enters., 981 F.3d 1265, 1272 (11th Cir.

2020) (quoting 29 C.F.R. § 1630.2(j)(1)(ii)). Here, both

ACP and PKD constitute a substantial limitation “as

compared to most people in the general population.”

(Doc. #41, pp. 13-14.) The Court further found that concerning

major life functions:

The regulations recognize that certain types of

impairments will be found, in virtually all cases, to

constitute a "disability" under the ADA. §

1630.2(j)(3)(ii). The regulations explain that "[g]iven

their inherent nature, these types of impairments will,

as a factual matter, virtually always be found to impose

a substantial limitation on a major life activity" and

therefore should demand only a "simple and

straightforward" assessment. Id. For example, the

regulations state that it “should easily be concluded”

that “. . . cerebral palsy substantially limits brain

function . . . .” § 1630.2(j)(3)(iii).

Here, Plaintiff has testified that his ACP affects his

speech and his writing, in that his speech is “a little

more jagged” and it takes him a lot longer to write than

most people. (Doc. #23-2, p. 85.) As mentioned above,

speaking and communicating are both major life

functions. Viewing the evidence and reasonable

inferences in a light most favorable to Plaintiff, the

Court finds that a reasonable jury could conclude that

Plaintiff has ACP and PKD which substantially limits a

major life activity as compared to most people in the

general population. Therefore, Plaintiff has

established a “disability” for summary judgment

purposes.

(Id., pp. 14-15.)

"While a party may seek to correct clear errors in a motion

for reconsideration, [a]n error is not clear and obvious if the

legal issues are at least arguable." Quality of Life, Corp. v.

City of Margate, No. 17-cv-61894, 2019 U.S. Dist. LEXIS 7029, at

*5-6 (S.D. Fla. Jan. 15, 2019) (citing Leonard v. Astrue, 487 F.

Supp. 2d 1333, 1341 (M.D. Fla. 2007). Though Defendant may

disagree whether Plaintiff, as a matter of law, is “actually

disabled” under the ADA and FCRA, it does not establish that the

Court’s Order was clearly erroneous. See, e.g., San Martin v.

McNeil, 633 F.3d 1257, 1265 (11th Cir. 2011) (In most

circumstances, "clear error" means that "the record lacks

substantial evidence" to support a particular finding); Ledford

v. Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600,

632 (llth Cir. 2016) (noting that the "clearly erroneous standard

is 'tvery deferential’” and "[i]f the district court's account of

the evidence is plausible in light of the record viewed in its

entirety, the court of appeals may not reverse it even though

convinced that had it been sitting as the trier of fact, it would

have weighed the evidence differently.").

Finally, Defendant argues that because Plaintiff’s PKD may

only meet the definition of “disability” under the “regarded as”

prong (and not the “actual disability” prong), the Court’s pretext

analysis is based on manifest error of the law. (Doc. #46, p. 7.)

For the reasons discussed above, Defendant’s argument is a moot

point.

Accordingly, it is now

ORDERED :

Defendant’s Motion for Reconsideration (Doc. #46) is DENIED.

DONE AND ORDERED at Fort Myers, Florida, this 29th day of

March, 2022.

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adi EF. STEELE

SHNIOR UNITED STATES DISTRICT JUDGE

Copies: Counsel of record