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Singh v. George Washington University

August 23, 2005

CAROLYN SINGH, PLAINTIFF,
v.
THE GEORGE WASHINGTON UNIVERSITY, DEFENDANT.



The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge

MEMORANDUM & ORDER

Before the Court in this Americans with Disabilities Act ("ADA") case is the motion [40] of defendant The George Washington University (the "School") for reconsideration of the Court's March 22, 2005 Memorandum Opinion and Order. On March 22, 2005, the Court granted in part and denied in part the parties' cross-motions for summary judgment, and, pursuant to Federal Rule of Civil Procedure 56(d), determined that plaintiff Carolyn Singh ("Singh") had established two elements of her ADA claim: while the Court could not resolve the issue of whether Singh was disabled, the Court found that she was "otherwise qualified" and that she had suffered discrimination. Singh v. George Wash. U., 368 F. Supp. 2d 58 (D.D.C. 2005).

The School asks the Court to reconsider its determinations that the "second chance doctrine" does not apply and that Singh's request for accommodation was timely. In the alternative, the School seeks certification of these issues to the Court of Appeals for interlocutory review.

After consideration of defendant's motion for reconsideration, the memorandum in support thereof, the opposition and reply thereto, and the record in this case, the Court will deny defendant's motion.

I. RECONSIDERATION

A. Legal Standard

Federal Rule of Civil Procedure 54(b) governs reconsideration of orders that do not constitute final judgments in a case. Cobell v. Norton, 355 F. Supp. 2d 531, 539 (D.D.C. 2005). Rule 54(b) provides that:

any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties ... is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

Fed. R. Civ. P. 54(b). This Court may permit revision "as justice requires." Cobell v. Norton, 224 F.R.D. 266, 272 (D.D.C. 2004). While the phrase, "as justice requires," is somewhat abstract, it is a shorthand for more concrete considerations. Id. Justice may require revision when the Court has "patently misunderstood a party, has made a decision outside the adversarial issues presented to the Court by the parties, has made an error not of reasoning but of apprehension, or where a controlling or significant change in the law or facts [has occurred] since the submission of the issue to the Court." Cobell, 224 F.R.D. at 272 (citing Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir.1990) (internal quotes omitted)). Errors of apprehension may include a Court's failure to consider "controlling decisions or data . . that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir.1995).

"The district court's discretion to reconsider a non-final ruling is, however, limited by the law of the case doctrine and 'subject to the caveat that where litigants have once battled for the court's decision, they should neither be required, nor without good reason permitted, to battle for it again.'" In re Ski Train Fire in Kaprun, Austria, on November 11, 2004, 224 F.R.D. 543, 546 (S.D.N.Y. 2004) (quoting Official Comm. of the Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, 322 F.3d 147, 167 (2d Cir.2003)). The sure and speedy administration of justice requires no less.

B. Analysis

The School first seeks reconsideration because it believes the Court does not understand the so-called "second chance doctrine," and misapplied that doctrine in this case. In the March 22, 2005 Memorandum Opinion and Order, the Court described the second chance doctrine:

Some courts have admonished that the ADA requires reasonable modifications, but not second chances. Under this "no second chance" banner, courts have held that for a student or worker who cannot perform satisfactorily even when accommodated and gets terminated as a result, the reversal of the termination decision would not be a reasonable modification. See, e.g., Bugg-Barber v. Randstad US, L.P., 271 F. Supp. 2d 120, 131 (D.D.C. 2003). Courts have also held that for a person who cannot control the effects of his or her disability and gets terminated as a result, the reversal of the termination decisions would likewise not be a reasonable modification. See, e.g., Siefken v. Village of Arlington Heights, 65 F.3d 664 (7th Cir. 1995) (holding that a diabetic police officer was properly terminated when he suffered a diabetic reaction on the job and drove his car erratically and at high speeds through residential areas); accord Hill v. Kansas City Area Transp. Auth., 181 F.3d 891 (8th Cir. 1999). The second chance doctrine, in so far as it is a doctrine, works to deny already accommodated and at-fault plaintiffs from winning an endless string of new accommodations after each failure. The doctrine does not apply to plaintiffs who, through no fault of their own, have not yet had a chance to get the modifications they need. See Dudley v Hannaford Bros. Co., 333 F3d 299 (1st Cir. 2003).

Singh, 368 F. Supp. 2d at 70-71. The Court did not apply the second chance doctrine to Singh. Id. at 71. The School argues that the Court misconstrued Hill, Siefken, and Dudley and should have applied ...


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