# Milligan v. Rambosk

> District Court, M.D. Florida · March 29, 2022

URL: https://www.frixlaw.com/law-library/cases/10109754

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** March 29, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10109754

## How later opinions describe it (automated extraction)

- affirming denial of reconsideration where plaintiff merely "disagreed with the district court's treatment of certain facts and its legal conclusions"

## Opinion text

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.

J me Ae
: | hy dE, Ah Look
adi EF. STEELE
SHNIOR UNITED STATES DISTRICT JUDGE

Copies: Counsel of record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10109754. Public record. Not legal advice.