United States District Court, D. Arizona
David G. Campbell United States District Judge
Defendants filed a motion for reconsideration (Doc. 117) of portions of the Court’s October 21, 2015 order (Doc. 115) granting in part and denying in part their motions for summary judgment against Plaintiffs Kendall Drake and Greg Hunter. The motion is fully briefed, and no party has requested oral argument. Docs. 121, 124. For the reasons that follow, the Court will deny the motion.
I. Legal Standard.
Motions for reconsideration are disfavored and should be granted only in rare circumstances. Collins v. D.R. Horton, Inc., 252 F.Supp.2d 936, 938 (D. Ariz. 2003). A motion for reconsideration will be denied “absent a showing of manifest error or a showing of new facts or legal authority that could not have been brought to [the Court’s] attention earlier with reasonable diligence.” LRCiv 7.2(g)(1); see Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003). Mere disagreement with an order is an insufficient basis for reconsideration. See Ross v. Arpaio, No. CV-05-04177-PHX-MHM, 2008 WL 1776502, at *2 (D. Ariz. Apr. 15, 2008). Nor should reconsideration be used to ask the Court to rethink its analysis. United States v. Rezzonico, 32 F.Supp.2d 1112, 1116 (D. Ariz. 1998); see N.W. Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 925-26 (9th Cir. 1988).
Defendants argue that the Court should reconsider the portions of its October 21, 2015 order addressing (1) Plaintiffs’ constructive discharge claims, and (2) Drake’s whistleblower claim.
A. Plaintiffs’ Constructive Discharge Claims.
As discussed in the October 21, 2015 order, constructive discharge is not a standalone claim. See Doc. 115 at 19-20. Because Plaintiffs’ First Amendment retaliation claims and Drake’s whistleblower claim survived summary judgment, the Court was required to analyze Plaintiffs’ constructive discharge claims in both contexts. See Id. at 20-22. Defendants’ motion for reconsideration addresses only Plaintiffs’ constructive discharge claims based on First Amendment retaliation; it does not discuss Arizona’s constructive discharge statute, A.R.S. § 23-1502. See Doc. 117 at 2-7. In addition, Defendants’ motion only addresses facts relating to Drake’s claim; it does not specifically discuss facts relating to Hunter’s claim. See Id. The Court therefore addresses only the challenged portions of its ruling.
The Court denied summary judgment on Drake’s First Amendment retaliation claim and concluded that a reasonable jury could find that Drake engaged in speech protected by the First Amendment when she filed her May 22, 2013 offensive behavior complaint with the City of Eloy. See Doc. 115 at 9-12. Drake alleges that Defendants retaliated against her for engaging in this protected activity. In the same order, the Court summarized the evidence presented by Drake and concluded as follows:
Plaintiffs each point to a number of Defendants’ actions as creating an intolerable work environment. Drake points to essentially all of Defendants’ actions since April 20, 2013, including her performance evaluations, her schedule change and its effect of depriving her of training opportunities she had been promised, the change in how she was treated by Defendants on a day-to-day basis, and, most significantly, how Defendants handled her sexual harassment allegations against Young. . . . Standing alone, none of these actions rise to the level of constructive discharge. The Court cannot conclude, however, that a reasonable jury would be unable to find constructive discharge when they are considered in the aggregate for each Plaintiff.
Doc. 115 at 20-21 (citations omitted).
To establish constructive discharge in the Ninth Circuit, a plaintiff must show that “a reasonable person in his position would have felt that he was forced to quit because of intolerable and discriminatory working conditions.” Huskey v. City of San Jose, 204 F.3d 893, 900 (9th Cir. 2000) (citation omitted). Generally, an isolated incident is insufficient. A plaintiff must instead establish “some aggravating factors, such as a continuous pattern of discriminatory treatment, ” to support a constructive discharge finding. Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406, 1411-12 (9th Cir. 1996) (citation omitted). This showing can be based on the “cumulative effect” of defendant’s actions. Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1110 (9th Cir. 1998). “Whether working conditions were so intolerable and discriminatory as to justify a reasonable employee’s decision to resign is normally a factual question for the jury.” Schnidrig, 80 F.3d at 1411 (citation omitted).
Defendants argue that, under Ninth Circuit law, the Court committed manifest error by “holding that entirely lawful conduct can be aggregated with unlawful conduct to support a constructive discharge claim.” Doc. 117 at 4. By “lawful, ” Defendants refer to conduct that occurred before May 22, 2013, the date of Drake’s First Amendment activity. Conduct before that date could not have been in retaliation for her protected activity. Defendants contend that the Court erred by including such conduct in the evidence a jury could consider when deciding whether Drake’s working conditions became intolerable - in effect, dropping “the requirement that the actions constituting constructive discharge be intolerable and unlawful.” Id. at 5 (emphasis in original).
But Drake has identified several actions that occurred after her May 22, 2013 complaint that could be viewed as retaliatory. See Doc. 115 at 20-21. Drake provided evidence that Defendants treated her differently from the April 20, 2013 call until she ultimately resigned. Doc. 104-2 at 118. Although framed as a single incident, Defendants’ treatment of Drake’s sexual harassment allegations against Young actually constituted a number of discrete actions - and inactions - by Defendants. On June 2, 2013, Young sent Drake a series of inappropriate text messages. Doc. 89-4 at 86-88. The next day, Drake took leave to undergo foot surgery. Doc. 89-2 at 3, ¶ 3. Drake reported Young’s harassment the following week, and he was placed on administrative leave and then suspended without pay for 40 hours and removed from the list of promotion-eligible officers. Docs. 89-3 at 24; 89-4 at 44-45, ¶¶ 8-13. Although Drake expressed concern that Young’s punishment was too lenient, the Eloy City Manager did not modify it. Doc. 104-6 at 36. When Drake returned to work, Defendants attempted to alter Drake’s and Young’s schedules to minimize overlap. Doc. 89-4 at 45, ¶ 13. In September, Drake had several negative interactions with Young. Docs. 104-1 at 18-21, 46-50; 104-6 at 51-53. In one incident, Drake was asked to leave the squad room where she was ...