727 F.3d 950 (9th Cir. 2013), 11-17398, Smith v. Clark County Sch. Dist.

Docket Nº:11-17398
Citation:727 F.3d 950
Opinion Judge:GOULD, Circuit Judge:
Party Name:JACQLYN SMITH, Plaintiff-Appellant, v. CLARK COUNTY SCHOOL DISTRICT, Defendant-Appellee
Attorney:Michael P. Balaban (argued), Law Offices of Michael P. Balaban, Las Vegas, Nevada, for Plaintiff-Appellant. S. Scott Greenberg (argued), Clark County School District, Office of General Counsel, Las Vegas, Nevada, for Defendant-Appellee.
Judge Panel:Before: William A. Fletcher, Ronald M. Gould, and Morgan Christen, Circuit Judges. Opinion by Judge Gould.
Case Date:August 21, 2013
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 950

727 F.3d 950 (9th Cir. 2013)

JACQLYN SMITH, Plaintiff-Appellant,

v.

CLARK COUNTY SCHOOL DISTRICT, Defendant-Appellee

No. 11-17398

United States Court of Appeals, Ninth Circuit

August 21, 2013

Argued and Submitted, San Francisco, California May 6, 2013.

Appeal from the United States District Court for the District of Nevada. D.C. No. 2:09-cv-02142-RLH-LRL. Roger L. Hunt, Senior District Judge, Presiding.

AFFIRMED IN PART; REVERSED IN PART.

Page 951

Michael P. Balaban (argued), Law Offices of Michael P. Balaban, Las Vegas, Nevada, for Plaintiff-Appellant.

S. Scott Greenberg (argued), Clark County School District, Office of General Counsel, Las Vegas, Nevada, for Defendant-Appellee.

Before: William A. Fletcher, Ronald M. Gould, and Morgan Christen, Circuit Judges. Opinion by Judge Gould.

SUMMARY[*]

Employment Discrimination

The panel affirmed in part and reversed in part the district court's judgment in favor of an employer on claims of disability discrimination and failure to accommodate under the Americans with Disabilities Act of 1990.

The panel held that the district court did not abuse its discretion by granting the employer's motion for reconsideration of an order denying summary judgment because in that order the court committed a clear error of law by not applying controlling Supreme Court precedent.

The panel held that, in deciding whether the plaintiff was a " qualified individual" under the ADA, the district court did not properly apply the framework set forth in Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999), for analyzing the effect of inconsistent statements on applications for disability benefits. The panel concluded that claims for disability retirement, disability leave under the Family and Medical Leave Act, and private insurance disability benefits do not inherently conflict with an ADA claim because they do not account for an applicant's ability to work with a reasonable accommodation. In addition, the panel held that, viewing the facts in the light most favorable to the plaintiff, she had offered sufficient explanations for her inconsistent statements in her prior benefit applications so that her case could proceed past summary judgment. Therefore, the panel held that the district court erred in granting summary judgment for the employer, and reversed and remanded for further proceedings.

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OPINION

GOULD, Circuit Judge:

Jacqlyn Smith appeals the district court's order granting summary judgment in favor of Clark County School District on Smith's claims for disability discrimination and failure to accommodate under the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § § 12101-12213. See Smith v. Clark County (Smith II), No. 2:09-cv-2142, 2011 WL 4007532 (D. Nev. Sept. 8, 2011) (unpublished). Smith argues (1) that the district court abused its discretion by granting the School District's motion for reconsideration of its initial order denying summary judgment; and (2) that the district court erred by granting summary judgment under Cleveland v. Policy Management Systems Corporation, 526 U.S. 795, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999). We have jurisdiction under 28 U.S.C. § 1291,

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and we affirm in part and reverse in part.

I

Smith worked in the Clark County School District from 1992 to 2008. She first taught elementary school. But in 2001, Smith had a back injury that limited her mobility and led her to pursue a less physically demanding job within the school setting. Literary specialist fit the bill. Literary specialists train and assist elementary school teachers with teaching and testing student literacy skills, but literary specialists are not responsible for all of the duties needed to teach a class of students. Smith earned her literary-specialist certification in 2004 and took a job as a literary specialist in the School District. Smith remained a literary specialist in the School District until 2008. Between 2004 and early 2008, Smith received positive reviews for her work as a literary specialist.

In March 2008, the principal at Kesterson Elementary School told Smith that she would be reassigned to teach kindergarten for the 2008-2009 school year. Smith objected, asking to remain in her literary-specialist position because her back injury prevented her from teaching. According to Smith, she could not perform the " standing, bending, [and] stooping required to be an effective kindergarten or elementary school teacher." Shortly after this meeting, Smith aggravated her back while sorting boxes at work, and she was unable to work as a literary specialist for the rest of the school year. During the next few months, Smith applied for family medical leave and disability benefits. These applications are at the heart of this appeal.

On April 21, 2008, Smith filed a request for leave under the Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. § § 2601-2654. On the request form, Smith's doctor explained that Smith was " presently incapacitated" and could not " work at all until released by [a] doctor." In May 2008, Smith applied for and began receiving private disability benefits through American Fidelity Assurance Company. In her application for these benefits, Smith stated that her " dates of total disability" ranged from March 31, 2008 to " Not Sure." Two months later, Smith sought an extension to her FMLA benefits and filed an updated form with her doctor's statement that Smith was " presently incapacitated," would " be out of work indefinitely," and could do " no work of any kind until released by a doctor."

In late August, Smith applied for disability retirement under the Nevada Public Employees' Retirement Systems (PERS) on the basis that she could not perform the duties required for her current job as a kindergarten teacher, including standing for long periods of time, bending, stooping, walking, lifting, and reaching. She also explained that she could not perform the lifting, bending, and stooping required for her former job as a literary specialist, but she could sit to work. Her doctor certified that Smith was " unable to work due to injury or mental or physical illness." The Nevada Retirement Board approved Smith's application for " total and permanent disability" in October 2008.

During this time, Smith was embroiled in heated and unhappy discussions with the School District over whether she could work as a kindergarten teacher and how the School District should accommodate her disability. Smith insisted that she could not teach in the classroom and repeatedly asked that the school district accommodate her disability by keeping her in the literary-specialist position or by transferring her to another non-teacher position within the School District, such as a project facilitator. The School District

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was adamant, however, that Smith could not remain in the literary-specialist position and that transferring Smith to another position was not a reasonable accommodation. Instead, the School District offered several accommodations for the kindergarten-teacher position, including a special chair that would reduce Smith's need to bend and stoop and a full-time classroom aid to help with lifting and to minimize Smith's movement. After an extended stalemate, the parties failed to reach an agreement. Smith resigned from the School District at the end of September 2008, so she could receive PERS disability retirement. Smith takes the position that she did not...

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