McCoy v. Department of the Army et al
Filing
104
ORDER denying 91 Motion for Reconsideration signed by Judge Lawrence K. Karlton on 12/21/11. (Matson, R)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ROSLYN McCOY,
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NO. CIV. S-09-1973 LKK/CMK
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Plaintiff,
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v.
DEPARTMENT OF THE ARMY -ARMY CORPS OF ENGINEERS and
HONORABLE JOHN McHUGH,
SECRETARY OF THE ARMY,
collectively,
O R D E R
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Defendants.
/
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Plaintiff claims that she was terminated from her clerical
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position with the Army Corps of Engineers because of her dyslexia,
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in violation of the Rehabilitation Act of 1973. The complaint
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alleges both retaliation and disparate treatment theories. Pending
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before the court is plaintiff’s motion for reconsideration of the
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portion
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compensatory damages are not available for plaintiff’s retaliation
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claim under the Rehabilitation Act. For the reasons stated herein,
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plaintiff’s motion is DENIED.
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of
this
court’s
May
31,
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2011
order
holding
that
I. Background1
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Plaintiff worked as an administrative support assistant in the
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Equal Employment Opportunity office at the Army Corps of Engineers
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from May, 2005, until September, 2006. Plaintiff self-designated
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as having a learning disability when she applied for the job. In
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September 2006, plaintiff was given a termination notice that
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stated:
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You are being terminated because of your unsatisfactory
conduct including your making a false statement to the
Chief of Staff during a meeting on 23 August 2006
wherein you stated “you were not required to proofread
your work”; on 24 August 2006, you made a false
statement to me when you said that it was your idea to
meet with Diversity Jubilee volunteers prior to the
event; and your inappropriate comment to a member of the
Safety Office on 7 April 2006.
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Notice of Termination, Ex. E to Brown Decl. in Supp. of Mot. for
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Summ. J., ECF No. 67-8. Plaintiff asserts that the reasons given
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for
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terminated because of her disability, and in retaliation for
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complaining about disability discrimination.
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her
termination
are
pretext,
and
that
she
was
actually
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In an order issued on May 31, 2011 (“May 31 order”), this
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court denied in part and granted in part a motion for summary
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judgment
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established
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defendant’s stated reasons for firing plaintiff were pretext. The
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court granted summary judgment to defendants on this issue of
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whether plaintiff could recover compensatory damages for her
by
defendant.
a
genuine
The
issue
court
of
held
that
plaintiff
material
fact
as
to
had
whether
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The factual assertions in this case are more fully detailed
in the court’s May 31, 2011 order on summary judgment, ECF No. 78.
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retaliation claim. The court noted: “On this issue, the court is
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confronted with an unambiguous statute that says one thing, and two
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Ninth Circuit opinions which, put together, unambiguously hold the
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opposite.” May 31, 2011 Order, ECF No. 78. The court ultimately
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concluded
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retaliation claims under the Rehabilitation Act pursuant to two
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Ninth Circuit opinions holding that the remedies for violations of
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the Americans with Disabilities Act (“ADA”) and the Rehabilitation
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Act are co-extensive with each other, Ferguson v. City of Phoenix,
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157 F.3d 668 (9th Cir. 1998)(cert. denied at 529 U.S. 1159), and
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that compensatory damages are not available for retaliation claims
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under the ADA, Alvarado v. Cajun Operating Co., 588 F.3d 1261, 1268
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(9th Cir. 2009).
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that
compensatory
damages
are
not
available
for
Plaintiff now seeks reconsideration of the court’s holding.
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II. Standard for a Motion for Reconsideration under
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Fed. R. Civ. P. 60(b)(6).
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Federal Rule of Civil Procedure 60(b) provides: “On motion and
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just terms, the court may relieve a party . . . from a final
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judgment, order, or proceeding” in the case of mistake or excusable
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neglect, newly discovered evidence, fraud, a judgment that is void,
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satisfaction of the judgment, or for “(6) any other reason that
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justifies relief.” Fed. R. Civ. P. 60(b). This catch-all provision
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of Rule 60(b)(6) “vests power in courts adequate to enable them to
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vacate judgments whenever such action is appropriate to accomplish
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justice.”
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Rule 60(b) “attempts to strike a proper balance between the
Klapprott v. United States, 335 U.S. 601, 615 (1949).
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conflicting principles that litigation must be brought to an end
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and that justice should be done.” Delay v. Gordon, 475 F.3d 1039,
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1044 (9th Cir, 2007)(quoting 11 Wright & Miller Federal Practice
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& Procedure § 2851 (2d ed. 1995).
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relief
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“extraordinary
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Acquisition Corp., 486 U.S. 847 (1988)(quoting Ackermann v. United
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States, 340 U.S. 193, 199 (1950)).
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under
In
Rule
60(b)(6),
Nonetheless, in order to seek
the
circumstances.”
addition,
Local
Rule
movant
Liljeberg
230(j)
must
v.
applies
demonstrate
Health
to
Services
motions
for
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reconsideration filed in the Eastern District. That rule requires
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the movant to brief the court on, inter alia, “what new or
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different facts or circumstances were not shown upon such prior
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motion, or what other grounds exist for the motion; and why the
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facts or circumstances were not shown at the time of the prior
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motion.”
III. Analysis
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Plaintiff asserts that reconsideration of this court’s holding
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that compensatory damages are not available for a retaliation claim
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under
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unpublished opinion issued in May 2010. That opinion, Herrera v.
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Giampietro, 2010 WL 1904827 (E.D.Cal. 2010), distinguished between
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ADA retaliation claims against private entities, and ADA claims
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directed at public entities. Noting the same statutory language
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that this court analyzed in its May 31 order, the Herrera court
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held that the plaintiff may be entitled to monetary damages for her
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retaliation claim against a school district.
the
Rehabilitation
Act
is
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warranted
in
light
of
an
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In her motion for reconsideration, plaintiff has not explained
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what new facts or circumstances justify reconsideration, nor has
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she explained why these facts and circumstances were not shown at
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the time of the prior motion. Instead, plaintiff asserts that she
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did not comply with these requirements because the court, in its
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Tentative Pretrial Conference Order, ECF No. 90, granted plaintiff
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permission to bring a motion to reconsider. This tentative order
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does not relieve plaintiff of the burden of showing what new facts
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and circumstances justify reconsideration under Fed. R. Civ. P.
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60(b)(6).
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The court was aware, at the time it issued its May 31 order,
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that
two
different
legal
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possible. The Rehabilitation Act itself, 29 U.S.C. § 791, contains
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no anti-retaliation provision, but expressly incorporates the ADA’s
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anti-retaliation
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whether this section has been violated in a complaint alleging non-
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affirmative action employment discrimination under this section
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shall be the standards applied under title I of the [ADA](42 U.S.C.
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12111 et seq.) and the provisions of sections 501 through 504, and
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510, of [ADA] (42 U.S.C. 12201-12204 and 12210), as such sections
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relate to employment.” 29 USCS § 791. The ADA’s anti-retaliation
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provision is found in 42 U.S.C. § 12203.
provision:
conclusions
“The
on
standards
this
used
question
to
were
determine
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Remedies for violations of the ADA and the Rehabilitation Act
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are delineated in the Civil Rights Act of 1991, 42 U.S.C. §
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1981a(2). That statute provides for compensatory damages in some
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cases of intentional discrimination, including for violations of
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section 501 of the Rehabilitation Act, 29 U.S.C. § 791. Section
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1981a(2) reads, in full:
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Disability. In an action brought by a complaining party
under the powers, remedies, and procedures set forth in
section 706 or 717 of the Civil Rights Act of 1964 [42
USCS § 2000e-5 or 2000e-16] (as provided in section
107(a) of the Americans with Disabilities Act of 1990
(42 U.S.C. 12117(a)), and section 505(a)(1) of the
Rehabilitation Act of 1973 (29 U.S.C. 794a(a)(1)),
respectively) against a respondent who engaged in
unlawful intentional discrimination (not an employment
practice that is unlawful because of its disparate
impact) under section 501 of the Rehabilitation Act of
1973 (29 U.S.C. 791) and the regulations implementing
section 501 [29 USCS § 791], or who violated the
requirements of section 501 of the Act [29 USCS § 791]
or the regulations implementing section 501 [29 USCS §
791]
concerning
the
provision
of
a
reasonable
accommodation, or section 102 of the Americans with
Disabilities Act of 1990 (42 U.S.C. 12112), or committed
a violation of section 102(b)(5) of the Act [42 USCS §
12112(b)(5)], against an individual, the complaining
party may recover compensatory and punitive damages as
allowed in subsection (b), in addition to any relief
authorized by section 706(g) of the Civil Rights Act of
1964 [42 USCS § 2000e-5(g)], from the respondent.
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Plaintiff’s disparate treatment and retaliation claims in this
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case are brought under 29 U.S.C. § 791. The Civil Rights Act of
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1991 does not provide for compensatory damages for violations of
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the ADA’s anti-retaliation provision, 42 U.S.C. § 12203. One
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reading of this statutory web is that, since 42 U.S.C. § 1981a
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expressly allows for compensatory damages for all successful
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Rehabilitation Act claims, plaintiff here may recover compensatory
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damages. Another reading is that compensatory damages are not
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available
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Rehabilitation Act’s prohibition on retaliation is incorporated
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from 42 U.S.C. § 12203, for which compensatory damages are not
for
plaintiff’s
retaliation
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claim,
since
the
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available.
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This court is bound by Ninth Circuit holdings embodying the
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latter interpretation. The Ninth Circuit has held that “by statute,
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the remedies for violations of the ADA and the Rehabilitation Act
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are co-extensive with each other, 42 U.S.C. § 12133; 29 U.S.C. §
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794a(a)(2), and are linked to Title VI of the Civil Rights Act of
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1964, 42 U.S.C. § 2000d, et seq.” Ferguson v. City of Phoenix, 157
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F.3d 668, 673 (9th Cir. 1998) cert. denied at 526 U.S. 1159 (1999).
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The Ninth Circuit has also held that compensatory damages are not
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available for ADA retaliation claims: “the text of section 1981a
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is not ambiguous. It explicitly delineates the specific statutes
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under the ADA for which punitive and compensatory damages are
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available. . . [the statute] limits its remedial reach to ADA
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discrimination claims, and does not incorporate ADA retaliation
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claims.” Alvarado v. Cajun Operating Co., 588 F.3d 1261, 1268 (9th
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Cir. 2009). The Alvarado court held ultimately that “punitive and
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compensatory damages are not available for ADA retaliation claims,”
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and that retaliation claims are redressable only by equitable
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relief. Id. at 1269.
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Bound by these holdings, this court concludes that in this
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circuit, compensatory damages are not available for retaliation
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under the Rehabilitation Act. The court cannot accept plaintiff’s
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position without departing from either Ferguson or Alvarado, which
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the court is not free to do.
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Accordingly, plaintiff’s motion for reconsideration, ECF No.
91, is DENIED.
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IT IS SO ORDERED.
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DATED:
December 21, 2011.
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